Judgment Title: D.S. -v- Judges of The Circuit Court & anor
Composition of Court: Denham J., Hardiman J., Fennelly J., Kearns J., Finnegan J.
Judgment by: Denham J.
Status of Judgment: Approved
THE SUPREME COURT
[S.C. No: 417 of 2006]
2. This is an appeal by the Director of Public Prosecutions, "the Director", from an order of the High Court (O'Neill J.) delivered on the 16th October, 2006, restraining the Director from taking any further step in the prosecution of D.S., the applicant/respondent, "the applicant", in the Circuit Criminal Court, on charges of sexual assault between 1994 and 1997 on S.L.
3. Initially the applicant was charged with six counts of sexual assault, three charges relating to T.L. and three charges relating to S.L. On the 6th November, 2002 the applicant applied successfully to sever the indictment and for separate trials in relation to each complainant.
4. The trial of the charges relating to T.L. commenced on the 7th November, 2002. On the 8th November, 2002 the jury was discharged. The applicant was retried on the T.L. charges on the 6th, 7th, 11th and 12th March, 2003. The jury acquitted the applicant.
5. The first trial of the applicant on the charges relating to S.L. took place over the 3rd and 4th of July, 2003, and ended in a jury disagreement. A retrial took place on the 2nd, 3rd and 4th March, 2004. This time the jury acquitted the applicant on count no. 3, but the jury were unable to reach a verdict on count no. 1 and count no. 2.
6. The applicant has sought to injunct a third trial on counts no. 1 and no. 2, relating to S.L.
7. This application commenced on the 18th October, 2004 when the High Court (McKechnie J.) gave the applicant leave to apply for judicial review for a permanent injunction restraining the Director from taking any further steps in prosecuting the applicant on the remaining two counts.
8. The grounds upon which leave for judicial review was granted were:-
1. That the decision of the Director to retry the applicant by way of indictment at Cork Circuit Criminal Court where he had previously been tried twice in respect of the same offence is a violation of the applicant's right to a fair trial pursuant to Article 38 of the Constitution.
2. That a retrial of the applicant on the charges to which he had already been tried on two previous occasions violates the applicant's right to a fair hearing pursuant to article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on the 4th day of November, 1950, and as adopted in this jurisdiction by the Human Rights Act, 2003.
5. That the applicant's right to the expeditious institution of criminal proceedings has been violated.
9. The application was at hearing before the High Court on the 14th and 15th June, 2006. On the 16th October, 2006 the learned High Court judge ordered that the Director be restrained from taking any further steps in this prosecution pending against the applicant.
10. The learned High Court judge applied the principle of double jeopardy and held that a trial would not be "in due course of law". He stated:-
"It is undoubtedly the case that the problem confronted in the various cases which were opened to me was whether a second trial was permissible. I have not seen any case in which there was a consideration of the problem posed by a third trial for the same offence, save the Jamaica case; Flowers v. The Queen, in which the double jeopardy principle was not raised.
In my view the correct balance between protecting that public right and at the same time guarding against the obvious and inherent dangers of repeat trials, which in itself is a very important public interest, is correctly achieved by limiting the number of trials that may be had, which end in jury disagreement to two trials. In so doing in my view the public has a full and fair opportunity to bring the case to a jury verdict and if on two occasions juries failed to reach a verdict through disagreement, it cannot be said that the public's right to a full and fair opportunity to bring the case to a jury has been curtailed or frustrated.
Beyond two such trials in my opinion, it can fairly be said, that the risk of an innocent person being convicted becomes unacceptable. This risk arises from the potential for the adjustment of evidence where it was seen perhaps to have been inadequate in the previous trials and also perhaps more importantly the potential prejudicial notoriety that will inevitably be attached to an accused person the more often he is tried for the same offence. These factors have greater weight in this case because all of the potential witnesses come from the same rural area and the trial is scheduled to take place locally. In addition the applicant was previously tried twice in respect of similar allegations made by T.L. and notwithstanding that he was acquitted, a fifth trial could in my opinion only give rise to the gravest concern as to the risk of a verdict kiltered simply by the perseverance of the State in pursuing the matter to that length. The fact that the applicant sought the severance of the indictment originally and was thus responsible for having at least two trials is irrelevant in my view. What is at stake here is not just the safeguarding of this individual applicant but also the public interest in the preservation of the integrity of the criminal trial process.
It could not ever reasonably be said, in my view, that a person could be exposed to say four or five or more trials for the same offence where there had been jury disagreements in all the previous trials. As a matter of common sense and decency reasonable people would say that at some point, enough is enough. In my view, in principle, the point at which there should be a prohibition on a further trial, is after all relevant public interests have been satisfied; namely after the public have had a full and fair opportunity to bring the case to a jury twice. Where two juries in separate trials fail to reach a verdict, because of disagreement, that public interest has been amply protected. In my view, at that point, there should be a prohibition of a further trial of the same person for the same offences in order to safeguard that individual from the risks of a verdict distorted by the dangers of multiple trials and to protect the public interest in preserving the integrity of the criminal trial process.
I have come to the conclusion therefore that the ancient common law prohibition on multiple trials known as the double jeopardy principle has application to this case, although it might more aptly be described as the triple jeopardy principle.
It follows that a third trial of a person for the same offence where in the two previous trials a jury has disagreed, would not in my opinion be a trial in due course of law as required by Article 38(1) of the Constitution."
11. From this judgment the Director of Public Prosecutions filed twelve grounds of appeal. These grounds are:-
i) The learned trial judge erred in granting the applicant the relief sought in the statement of grounds.
ii) The learned trial judge erred in granting an order restraining the further prosecution of the criminal charges against the applicant.
iv) The learned trial judge erred in concluding that it was for the Courts and not the Oireachtas to strike that balance.
v) The learned trial judge erred in concluding that a third trial of a person for the same offence where in the two previous trials the jury had disagreed would not be a trial in due course of law as required by Article 38(1) of the Constitution.
vi) The learned trial judge erred in concluding that after two trials have been had, the risk of an innocent person being convicted becomes unacceptable, such that a third trial should be restrained.
vii) The learned trial judge erred in concluding that it was irrelevant that the applicant sought the severance of the indictment originally and was thus responsible for having at least two trials.
viii) The learned trial judge erred in concluding that the point at which there should be prohibition on a further trial is after the public have had a full and fair opportunity to bring the case to a jury twice.
ix) The learned trial judge erred in concluding that where two juries in separate trials failed to reach a verdict, because of a disagreement, the public interest in having criminal charges prosecuted all the way to a verdict by a jury has been amply protected.
x) The learned trial judge erred in concluding that there should be a prohibition of a further trial of the same person for the same offences in order to safeguard that individual from the risk of a verdict distorted by the dangers of multiple trials and to protect the public interest in preserving the integrity of the criminal trial process.
xi) The learned trial judge erred in concluding that the ancient common law prohibition on multiple trials known as the double jeopardy principle had application to the applicant's case herein.
xii) The learned trial judge erred in granting prohibition.
12. Written and oral submissions were made to the Court on behalf of the applicant and the Director.
13. There are a number of separate issues to be considered in this appeal.
14. Severance of the Indictment
The applicant sought and received an order of the trial court that there be separate trials in relation to the counts referring to each complainant. That was his entitlement, and it must be assumed that the trial court made such an order in the interests of justice. However, that being the case, and separate trials having been ordered, the separate trial and retrial in relation to another complainant is not immediately relevant to the issue of the trial and retrial of the applicant on the indictment referring to complainant S.L. If a court determines, where there are a multiplicity of complainants, that the trials should be severed, that may not then be turned around and used as an argument that because there are a series of trials, for a series of complainants, that that is unjust to an accused. Thus, for example, if an accused was before the courts on multiple complaints by, say, 4 complainants. If a trial court ordered that there be separate trials in relation to each of the complainants, that per se, may not be a basis upon which to restrict the trials coming at the end of the list. Severance is a tool utilised by a court to protect a fair trial. That tool may not then be twisted by an accused from a shield for him in trial, to a sword prohibiting later trials. Each situation requires to be considered in all the circumstances of the case. Each trial, or series of trials, in relation to a complainant, should be assessed individually. This does not, of course, exclude the jurisdiction of a court to prohibit a trial when there is a real risk of an unfair trial.
It was a ground of appeal that the learned trial judge erred in concluding that the applicant sought the severance of the indictment originally and was thus responsible for having at least two trials. This is a process followed to achieve a fair trial and consequently part of the integrity of the criminal justice system.
15. Absolute rule as to the number of trials
The Oireachtas has not legislated as to the number of times a person may be tried on an indictment. Consequently as there is no statutory law on this issue, there is no statutory limit on the number of times a person may be prosecuted. A decision is required to be made in each case, depending on all the circumstances, involving the exercise of a discretion.
The decision-making power to bring a prosecution on indictment lies with the Office of the Director of Public Prosecutions, which is an independent office, established by statute. The decision to bring a prosecution depends on all the circumstances of a case. In some situations it may not be appropriate to bring a prosecution in the first instance, or for a second time, for good reasons. It requires an exercise of discretion on the matrix of facts. The circumstances will be different in every case.
First, there may be issues as to witnesses, their availability, and their statements. Secondly, there may be issues as to an earlier prosecution. Thus, the stage at which a first trial was reached is important. Did it fail before the trial commenced? Did it fail shortly after the trial commenced? Why? Was it due to the illness of jurors? Was something said before a jury which should not have been? Was there a disagreement? Obviously a situation where a trial was stopped early in the process, because of something such as the illness or absence of a juror, is entirely different to a situation where there has been a full trial but the jury could not reach a decision. Each situation requires to be considered in all the circumstances of the case. It is quintessentially a matter for the exercise of a discretion, and not for a hard and fast rule as to the number of prosecutions which may be brought.
A rule limiting the number of trials to two would be a form of legislation, which may be done only by the Oireachtas. It is not for a court of law to make such a rule. Consequently I would uphold the Director's ground of appeal that the learned trial judge erred in limiting the number of trials which may be brought, which end in jury disagreements, to two trials. I would respectfully disagree with the learned trial judge's conclusion that it was for the courts and not the Oireachtas to strike that balance. Whether or not a third trial for the same offence is a trial contrary to Article 38(1) of the Constitution is a matter to be determined in all the circumstances of the case.
16. Double Jeopardy
The High Court stated that the first question to be addressed was whether the common law prohibition on double jeopardy had any application to the circumstances of this case. Having reviewed certain matters, the learned High Court judge held:-
"I have come to the conclusion therefore that the ancient common law prohibition on multiple trials known as the double jeopardy principle has application to this case, although it might more aptly be described as the triple jeopardy principle.
It follows that a third trial of a person for the same offence where in the two previous trials a jury has disagreed, would not in my opinion be a trial in due course of law as required by Article 38(1) of the Constitution."
With great respect I would disagree with the learned trial judge's finding that the double jeopardy principle has any application to this case. The concept of double jeopardy is built on the principles of autre fois convict and autre fois acquit. These terms refer to a situation where there has been a prior conviction or a prior acquittal.
Autre fois convict refers to a situation where an accused was formerly convicted of the crime in issue. It enables a plea, and a decision if true, that he has already been tried and convicted of the same offence before a court. An accused may not be retried for an offence for which he has already been tried and convicted, and he may not be put in jeopardy of such a trial.
Autre fois acquit refers to a situation where an accused was previously acquitted of the crime in issue. Similarly, an accused may not be retried for an offence for which he has already been tried and acquitted, and he may not be put in jeopardy of such an occurrence.
Neither principle applies to this case. The applicant has neither been acquitted nor convicted of the offences in issue. There was no final verdict in the previous trials.
The principle was recently described in Registrar of Companies v. Anderson  1 IR 21 at p.26, where Murray C.J. stated:-
"It has for a long time been a principle of the common law that a person cannot be prosecuted and punished for an offence of which he has already been acquitted or convicted. This is commonly referred to as the rule against double jeopardy. It is a rule which applies to the prosecution of criminal offences. The rule, or what also might be called the notion, of double jeopardy is not normally relied upon in express terms in the sense that if a person is prosecuted for an offence arising out of the same breach of the law or the same essential ingredients for which he has previously been tried and either convicted or acquitted, his defence to the second prosecution will be based on the pleas of autrefois acquit or autrefois convict. If either plea is successful the prosecution may proceed no further."
Consequently the double jeopardy principle does not apply to the circumstances of this case. I would uphold the Director's ground of appeal on this issue, and find that the learned trial judge erred in concluding that the ancient common law prohibition on multiple trials known as the double jeopardy principle had application to this case. A re-trial is not prohibited on this basis.
17. Trial in due course of law
However, the fact that the double jeopardy principle has no application does not conclude the matter. The process, the multiplicity of trials, may be reviewed by the Court to determine whether there has been an unfairness, in all the circumstances, so as to be contrary to trial in due course of law under the Constitution. This approach pursuant to the Constitution was referred to by Henchy J. in The People (D.P.P.) v. Quilligan (No.2)  I.R. 45 at p.57, where he stated, referring to the rule of double jeopardy:-
"The rule of autrefois acquit means that if an accused duly and successfully raises the plea that he has already been tried in a court of competent jurisdiction, acting within jurisdiction, for the offence now charged, and that he was acquitted of that charge in that court, the second trial for that offence may not take place. This rule (or principle), which is sometimes referred to as the rule against double jeopardy, is but an aspect of the canon of fundamental fairness of legal procedures, inherent in our Constitution, which is expressed in the maxim nemo debet bis vexari pro eadem causa."
In such an analysis there is no firm rule as to the number of potential trials. In each case all the circumstances require to be considered.
However, a long standing practice that two full trials ending in disagreement by a jury may be a circumstance in which a further trial may not be commenced, may be a sound basis from which to review all the circumstances. Such a convention has inherent wisdom. The Oireachtas has made no rule as to the number of trials possible, but has chosen the route of an independent decision-maker, in the form of the Director of Public Prosecutions, and has given to him the power to determine when a prosecution should be brought. Thus primarily it is the Director's decision. This does not exclude the duty of the Court to protect due process.
The position therefore is that no organ of state has set a limit on the number of trials which may be prosecuted. Rather, each organ of state retains to itself its power and duty, to be exercised in all the circumstances of each case.
The Court's duty is to protect due process. The test to be applied is whether there is real risk of an unfair trial. As Finlay C.J. stated in Z. v. Director of Public Prosecutions  2 I.R. 476, at p.506:-
"This Court in the recent case of D. v. Director of Public Prosecutions 2 I.R. 465 unanimously laid down the general principle that the onus of proof which is on an accused person who seeks an order prohibiting his trial on the ground that circumstances have occurred which would render it unfair is that he should establish that there is a real risk that by reason of those circumstances … he could not obtain a fair trial."
In each case there should be a balance sought between competing public interests. While protecting the public interest in prosecuting an accused, the integrity of the trial process also requires protection, guarding against the inherent dangers of repeat trials. A third trial may not per se be a breach of a trial in due course of law. All the facts of each case require to be considered.
The particular facts of each case are critical. The facts of this case are set out in affidavits and there was no cross examination. There was very little disagreement as to the facts, and none on the central issue of the sequence of trials. These facts establish the circumstances of the case.
The applicant was first returned to Cork Circuit Criminal Court on the 30th October, 2002. The matter was adjourned to the 6th November, 2002 when it was listed for trial. On that date the applicant brought an application to sever the indictment, which was acceded to by the learned trial judge.
On the 7th November, 2002 the trial commenced, relating to the complainant T.L. On the 8th November, 2002 the trial judge of his own motion discharged the jury. The trial was adjourned to 11th February, 2003, to the list to fix dates. The trial was listed for 6th March, 2003. On that date a jury was sworn for the trial, which proceeded on the 6th, 7th, 10th, 11th and 12th March, 2003. The applicant gave evidence in his defence. The jury reached a verdict of not guilty.
On the 7th May, 2003 the applicant appeared before the trial court in respect of the indictment relating to S.L. - the counts relevant to this judicial review. The matter was listed for trial on the 21st May, 2003. On that date the trial was adjourned for mention on 19th June, 2003. On the 19th June, 2003 the applicant appeared in court and his trial was listed for 3rd July, 2003. On the 3rd July, 2003 the applicant was arraigned and he pleaded not guilty. The case was heard by a judge and jury on 3rd and 4th July, 2003, and the applicant gave evidence in his defence. On the 4th July, 2003 the jury were unable to reach a verdict owing to a disagreement and the judge discharged the jury.
The trial of the applicant was adjourned for mention to the 21st October, 2003, when it was further adjourned for mention to the 17th November, 2003 for the purpose of fixing a trial date. On the 17th November, 2003 the trial was adjourned to the 17th February, 2004 for mention. On the 17th February, 2004 the applicant appeared in court and a trial date was set for 2nd March, 2004. On the 2nd March, 2004 the applicant was arraigned and pleaded not guilty. The trial of the applicant proceeded on the 2nd, 3rd and 4th March, 2004. On the 4th March, 2004 the learned trial judge directed that the applicant be found not guilty on the third count on the indictment. The applicant gave evidence in his defence, and at the conclusion of the trial the jury were unable to reach a verdict, owing to a disagreement on the remaining counts, count no. 1 and count no. 2.
The matter was adjourned to the 19th October, 2004, for mention, for the purposes of fixing a date for the third trial. The applicant was returned for trial. At all material times the applicant has remained on bail.
The applicant's solicitor deposed that he was advised by the applicant that the continuing retrials caused hardship to the applicant and his family. The applicant is married with three children. The applicant's solicitor deposed that he was advised by the applicant that as a consequence of the stress of the ongoing trials his eldest daughter did poorly in her Leaving Certificate examination and that his wife has become anxious and depressed and is taking antidepressant medication. Medical reports were exhibited from a Consultant Psychiatrist relating to the applicant, and from a General Practitioner in relation to the children and the family.
The latter report, dated the 5th July, 2004, stated that the youngest child, born in 1993, expresses fears of her father going to jail, is nervous in school and feels people are talking about her. She refused to attend school when the court cases were proceeding. The middle child, a boy born in 1988, has become withdrawn and quiet, and he has lost weight. After the last court case he cried when he knew his father was not going to jail. The eldest child, born in 1985, has experienced verbal abuse at school, it was reported by the doctor, and is afraid of meeting cousins in town. The G.P. concluded with the observation that the applicant had at that time lived with the matter for three years, worrying about the case, and the immense trauma it is causing the children. They have found it difficult to socialise and the applicant was asked to leave his position as a trainer in a local sports club.
The Consultant Psychiatrist's report is dated 17th September, 2004. He consulted with the G.P. prior to examining the applicant. Inter alia in his report, he stated, that the applicant having been a relaxed sociable man, had changed:-
"These changes are due to the nature of the charges made against him, their effects on important members of his family and also because the two girls that he is alleged to have injured are in fact daughters of his wife's brothers i.e. his wife's nieces.
This has been very hard on his wife because she and her brothers are now alienated. In addition to the fact that she has to cope with the charges made against him and has had to do so and it is clear from his account that she became very anxious and depressed. She has been taking a named anti-depressant drug and he told me the name of it and tried to stop it this year but began to get a good deal worse when she did and had to go back on it. She is still taking it and with it she can cope with life but she is still miserable enough though there are times when she can enjoy herself now. However, in all probability without the drugs she would be miserable all the time.
He is also worried about his three children.
Firstly, there is the eldest daughter who has just got her Leaving Cert. and is going to undertake a course in sports injuries in … … She got her Leaving Cert. but not the one they would have expected of her several years ago. He said that she was subjected to abuse at school by some girls who asked her questions such as 'When did her father last rape somebody?' and this upset her greatly. However, with the help of her friends she got over most of this. At the same time he said that she had a great interest in reading and she was great to study. He noticed that she stopped reading and her ambitions and interest in studying also decreased. He believes that she took the course she chose partly because it had very little low points and she didn't expect to do well in her Leaving Cert. whereas before she would have. Nonetheless, he is glad that her original emotional distress has eased and he thinks that some day she will recover her ambitions. His account fitted that given to me by Dr. O'Neill.
He spoke about his son and how he was very upset, didn't want to go out, got quite scared that his father was going to jail and lost weight, which indicates to me that his son may have been and probably was depressed. His son wanted to give up hurling, which he is very fond of but his parents insisted that he keep at it and this was good because he has got very involved in it, it distracts him and keeps him going and he is better now than he was.
Finally, he told me that his youngest daughter tends to cling to him and becomes disturbed and upset if he is away in an unexpected fashion for any length of time.
So the condition of his wife and three children are all upsetting him.
So also is the prospect of further court hearings but the matter that upsets him most is that of his mother who has died from leukaemia. He was very close to his mother who was very supportive of him including throughout the court hearings. Shortly after the last court hearing she looked very healthy and was very active doing a lot of walking and so on. Suddenly she became very tired and feeble, was admitted to hospital and died within a couple of days from a previously undiagnosed leukaemia. She had a hip replacement only a few months previously and had blood tests taken before and afterwards and they showed no trace of leukaemia, so it developed very suddenly. He now believes that the stress she developed as a result of all of this caused her leukaemia and her death. When he told me this he became exceedingly distressed and cried in a helpless fashion.
He was unable to believe my assurance that stress does not cause leukaemia although there was a possibility that it could make it worse or cause it to develop very quickly. However, some cases of leukaemia do come on like this did without stress. It sticks in his mind that her death from leukaemia was due to stress and it is going to take a long time for this to go out of his mind even if he goes for help. In fact, he could carry this until he dies.
Furthermore, I suspect even though he denied it that he may be blaming himself for involving his mother in so much stress, certainly whether he is or not his distress at what he sees as the link between all that is going on and his mother's death is overwhelming.
Apart from this his level of functioning varies. When first charged he became very distressed, he told the GAA, stopped refereeing football matches though the GAA would have stopped him in any event. He found it very hard to work, lost interest, energy and enjoyment and didn't sleep. He missed work at times and worked very badly at other times. But his friend carried him through and gradually he improved out of this. He didn't go to see any doctor. In fact he has never gone to see a doctor except to see Dr. O'Neill and I think this was on Mr ….'s instigation. He is the kind of man who carries on particularly where emotional things are concerned.
After he was acquitted in the case of the first girl he applied and was allowed to referee matches again and he is now doing this. He and his wife have resumed going out socially. However, they do not go out as often as they did previously and sometimes they don't enjoy themselves and return home. They also are more limited in where they go.
However, they had just been [to see] the hurling championship and there is one pub there that they go out to about once a week where they have friends and they are reasonably content most of the time. So in someways they are better except for the way he feels about his mother and his wife feels about the ongoing problems but they are coping a bit better but with difficulty.
However, under the surface he is still very tense apart altogether from his reaction to his mother's death as described.
I think it was over a year ago he and his wife went [out] to try and cheer themselves up. They think that their pub was involved in some type of dart competition. He didn't have much to drink but when he returned to the hotel room he went berserk and broke the furniture and people came running and got into the room for fear that his wife was in danger which she wasn't. He doesn't remember anything of this just what he has been told.
This is a sign of major stress that he is in and which he tries to cover under a veil of "Hail fellow well met surface". Things like that don't just happen except people are deeply disturbed.
He would in fact be fit to plead in further court hearings. But in my opinion they are very likely to increase the intensity of his present stress including extreme stress he feels about his mother's death, which is interfering with his capacity to grieve her and come to terms with it. As well as causing him further distress not just because of his fears of its outcome but because it is likely also to increase the stress on his wife and children thereby adding to his stress."
There are a number of factors relevant in all the circumstances of this case.
First, the issue of double jeopardy: for the reasons given earlier in this judgment, the principle of double jeopardy has no application to this case. Consequently it is not a ground upon which to prohibit a trial.
Secondly, is the issue of delay. The charges relate to events between 1994 and 1997. The applicant was charged and first returned to Court in 2002. He was first tried in 2003, and the retrial was in 2004. There is no issue of prosecutorial delay.
In 2004 the applicant obtained leave to judicially review the decision of the Director to prosecute for a third time. The delay between 2004 and 2008 arose because of the choice of the applicant to seek judicial review. It means that any trial now is four further years delayed. Consequently, the fact is that this trial has now been before the courts, in one proceedings or another, for six years.
Thirdly, the issue of severance of the trials is not per se a ground which the applicant may now wield as a sword to prohibit his trial. However, it is a factor in all the circumstances of the cases.
Fourthly, the stress and anxiety of the applicant is a factor. However, of itself it is not such as to prohibit his trial.
Fifthly, the stress and anxiety of his wife and children are factors. However, it is unfortunately true that families of an accused may suffer anxiety and stress to varying degrees when their loved one is on trial. Imprisonment, or fear of imprisonment, may affect deeply the family of an accused.
Sixthly, in the analysis of the situation the position of the victim should not be overlooked. This has an added poignancy when she is a member of the wider family, and when family rifts have occurred because of the charges. Also, it is a part of the matrix of facts in this case that the trials of the applicant on the complaint of the other complainant, also a family member, concluded in an acquittal. Consequently the family has been fraught with conflict for years.
Seventhly, there appears to be no change in the evidence to be offered at the third trial. It is similar to that of the two previous trials. Each subsequent trial becomes more oppressive and requires to be assessed objectively. A factor in this analysis is that there were two similar trials previously in relation to a different complainant, so taking a general view this would be a fifth trial.
Eighthly, a court should exercise its discretion to prohibit a trial with caution, given that the power to make a decision to prosecute has been given to the Director, by the Oireachtas, and no legislation prohibits more than two trials.
Ninthly, however, the Court has a duty to protect due process. This duty may not arise initially, when the Director has decided to prosecute. I would distinguish State (McCormack) v. Curran  ILRM 225. However, it will arise where the Court is reviewing the fairness of procedures and due process in circumstances where proceedings have been ongoing for years.
In this case no individual factor is such that of itself it would be a ground upon which to prohibit the trial of the applicant. However, having considered the grounds individually it is also appropriate to consider them cumulatively, as the ultimate decision should be proportionate, relate to the process as a whole, and to the fairness of the procedures. The Court is required to exercise a supervisory role, and to take into account all the circumstances of the case, which have been set out above in the judgment.
Bearing in mind all of the circumstances of the case, I am satisfied that it would be oppressive and unfair to prosecute a further trial in this case. In the interests of justice I would prohibit the third trial based on the complaint of S.L. Thus, while I have found for the Director on several of the grounds of appeal, in the interests of justice I would dismiss the appeal.
While the Director has succeeded on this appeal on a number of grounds, I am satisfied that the appeal should be dismissed and the third trial of the applicant on this complainant's complaint be prohibited, for the reasons given.
JUDGMENT of Mr. Justice Kearns delivered the 10th day of June, 2008
The applicant in this case is a married man and father of three children who lives in a rural part of Ireland. He was charged in 2001 on a single indictment containing six counts of sexual assault, three involving the complainant, TL, and three involving her cousin, SL. TL was born in 1980 and the offences involving her are alleged to have occurred in 1993. The applicant is the husband of TL’s aunt and TL did babysitting work for the two children of the applicant and his wife at that time. TL alleges that on occasions when she slept over in the applicant’s house he would come into the bedroom where she shared a bed with his children and would interfere with her under the bedclothes. He would touch her in the vaginal area and insert his fingers into her. This is said to have happened a number of times. SL was born in 1982 and the offences involving her are said to have occurred between 1994 and 1997. She also performed babysitting duties and made similar accusations to those made by TL. Both complainants came forward in 2001. The matter was first listed before the local Circuit Court judge on 30th October, 2002. The applicant successfully applied on 6th November, 2002 for separate trials in respect of each complainant. The first trial in the local Circuit Court commenced on 7th November, 2002, but on the following day the jury was discharged because defence counsel had confused certain factual matters in relation to the first complainant with particulars which related to the other complainant. The retrial of the applicant in relation to the first complainant took place in March, 2003 and resulted in a not guilty verdict from the jury in respect of all counts.
The trial in respect of SL commenced on 3rd July, 2003 and on 4th July, 2003 the jury disagreed on all counts. A retrial followed in March, 2004 when the jury returned a not guilty verdict on count 3 and disagreed in respect of counts 1 and 2.
As the second named respondent proposed to put the applicant on trial for a third time in respect of counts 1 and 2 in relation to SL, the applicant brought judicial review proceedings seeking an order of prohibition by way of a permanent injunction restraining the second named respondent from taking any further steps to retry the applicant. The grounds upon which relief was sought may be summarised as follows:-
(a) The decision of the second named respondent to retry the applicant when he had previously been tried twice in respect of the same offence was a violation of the applicant’s right to a fair trial pursuant to Article 38 of the Constitution.
(b) A retrial of the applicant would violate the applicant’s right to a fair hearing pursuant to Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms as adopted in this jurisdiction by the European Convention on Human Rights Act 2003.
(c) A retrial of the applicant on the charges in respect of which he had already been tried on two previous occasions was contrary to a rule of practice of long standing.
(d) A retrial of the applicant on the charges in respect of which he had already been tried on two previous occasions was oppressive to the applicant and amounted to an abuse of process.
In an affidavit sworn on behalf of the applicant by Joseph Cuddigan, his solicitor, the deponent states that the continual retrials of the applicant have caused great hardship to him and to his family. The applicant is a married man with three children, the eldest of whom recently completed secondary education. This daughter is alleged to have performed poorly in her Leaving Certificate examination as a result of the stress engendered as a result of the ongoing trials. Further, the deponent states that the applicant’s wife became anxious and depressed and was obliged to take anti-depressant drugs. It is further stated that the applicant’s domestic and social life suffered greatly as a result of the ongoing trial processes, to such a degree that in September, 2004, the applicant attended a consultant psychiatrist who diagnosed that both the applicant and his family were suffering from extreme stress as a result of the ongoing court proceedings. A medical report from Dr. Jane O’Neill, dated 5th July, 2004, which outlined the effects of the stress on the applicant’s children, was also exhibited in the affidavit.
Leave to bring judicial review proceedings was granted by order of the High Court (McKechnie J.) on 18th October, 2004. A statement of opposition was filed in January, 2005. The main grounds of opposition may be summarised as follows:-
(a) The decision of the second named respondent to try or retry the applicant is not, save in the most exceptional and limited circumstances, susceptible to relief by way of judicial review.
(b) It is denied that the decision of the second respondent to retry the applicant is either a violation of the applicant’s right to a fair trial pursuant to Article 38 of the Constitution, or his right to a fair hearing pursuant to Article 6 of the European Convention.
(c) It is further denied that any such retrial would be contrary to a rule of practice of long standing; alternatively, if there is such a rule of practice, it is denied that any such rule precludes the second respondent from exercising his statutory prosecutorial function.
(d) It is further denied that a retrial would be oppressive to the applicant or an abuse of process or that the applicant is entitled to the relief he claimed or to any relief.
JUDGMENT OF THE HIGH COURT
The High Court (O’Neill J.) by judgment and order delivered on 16th October, 2006 restrained the second named respondent from taking any further steps to prosecute or retry the applicant. O’Neill J. invoked the principle of double jeopardy to hold that the correct balance between protecting the public right to a full and fair opportunity to prosecute to a verdict by a jury while at the same time guarding against the inherent dangers of repeated trials was correctly achieved by limiting the number of trials which might be had, and which end in jury disagreement, to two trials. He further held, where two juries in separate trials failed to reach a verdict because they disagreed, that the public interest had been adequately protected and that a third trial of a person for the same offence would not be a trial in due course of law as required by Article 38.1 of the Constitution. The learned trial judge found that, beyond two such trials, the risk of an innocent person being convicted became “unacceptable”. The risk, as he saw it, arose from:-
(a) The potential for the “adjustment of evidence” where it was seen to have been inadequate in the previous trials, and
(b) The potential prejudicial notoriety that would inevitably be attached to an accused person the more often he is tried for the same offence.
He found that this latter factor had greater weight in the instant case because all of the potential witnesses came from the same rural area and the trial was scheduled to take place locally. The learned trial judge also took into account the fact that the applicant had previously been tried twice in respect of similar allegations made by a different complainant, TL, characterising the proposed retrial as a “fifth trial”.
He concluded :-
It follows that a third trial of a person for the same offence where in the two previous trials the jury had disagreed would not in my opinion be a trial in due course of law as required by Article 38(1) of the Constitution.”
RELEVANT LEGAL PRINCIPLES
In reaching his conclusion in this matter, the learned High Court judge derived what he described as “assistance and enlightenment” from the American jurisprudence on the topic of double jeopardy. He identified two strands of thought from decisions of the U.S. Supreme Court on the issue:-
Position in the United States
Having regard to the importance attached by the learned trial judge to American jurisprudence on the issue of double jeopardy, a brief consideration of the law in that jurisdiction is appropriate. Any such consideration must commence with the 5th Amendment to the U.S. Constitution which provides:-
‘…the plea of autrefois acquit, or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence’
In Burks v United States 437 U.S. 1 (1978), the Supreme Court made clear that reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the Government has failed to prove its case. The court stated at p.15:-
That was a case where the petitioner was indicted and tried in a Federal Court for first degree murder. The judge instructed the jury that it could find him guilty of either first degree murder or second degree murder. The jury found him guilty of second degree murder and its verdict was silent on the charge of first degree murder. The trial judge accepted the verdict, entered judgment, dismissed the jury and sentenced the petitioner to imprisonment. On appeal, his conviction was reversed and the case was remanded for a new trial. On remand the petitioner was tried again for first degree murder on the original indictment, convicted of first degree murder and sentenced to death, notwithstanding his plea of former jeopardy. The court held that the petitioners second trial for first degree murder placed him in jeopardy twice for the same offence in violation of the Fifth Amendment, holding that his jeopardy for first degree murder came to an end when the jury was discharged at the conclusion of his first trial and that he could not be retried for that offence.
Clearly that case turned on very special facts, because the jury’s verdict, as was noted by the court at p.190, could be seen “as an implicit acquittal on the charge of first degree murder”. As was stated by Black J. at p.191:-
Position in England & Wales
The position in Britain in relation to a retrial after a hung jury is quite different. Firstly, there is of course no constitutional provision governing the issue. Historically, as Blackstone noted (Blackstone’s Commentaries on the Laws of England, Vol. 3 (1769) 376 in Morrison (ed.), (Cavendish, London, 2001), p.295), a trial judge had the power to compel a jury to reach a verdict in so far that the judge could direct that the jury be moved by cart from town to town around the circuit until it reached a verdict. This created enormous difficulties. Before the Criminal Justice Act 1967, a jury verdict had to be unanimous. Section 13 of that Act, as later amended, provided for a majority verdict ten to two, ten to one or nine to one if there were less than ten jurors, if all the original jury members remain until the end of the trial.
An article written by Professor M. Cohen from the University of Sheffield “Retrial After a Hung Jury” 12 Anglo-American Law Review 174 (1983) contains a useful summary, at p.177, of the position in the neighbouring jurisdiction with regard to retrials following jury disagreement:-
But the question remains whether it is legally permissible to try a defendant a third or subsequent time. The Attorney General in 1964 said: ‘I think that there is power to have any number of retrials following any number of disagreements’. The power to retry after a jury has been discharged for any reason, including a disagreement, was a matter of some uncertainty until the middle of the nineteenth century. It then became established by a number of cases, the main one being Winsor, that a retrial after a discharge for disagreement was permissible. However, it is interesting to note that none of the four judges in that case on the hearing before the Queens Bench, and each gave a full and considered judgment, suggested that there could be more than one retrial. Further, when affirming the decision of the Queen’s Bench, Erle CJ giving judgment on behalf of the seven members of the Exchequer Chamber, also made no reference to the possibility of more than one retrial.
It is submitted that it should not be inferred from the various writers’ statements (to the effect) that the practice is to have no more than one retrial, that there is in law the power to have more than one.”
Multiple trials of a person for the same offence were considered in the context of “abuse of process” by the Court of Appeal in the case of R. v Henworth  2 Cr. App. R. 4. In that case the appellant was charged with one count of murder. He was convicted but had his conviction set aside by the Court of Appeal whereupon a retrial occurred which resulted in a hung jury. A second retrial then began in which the appellant conducted his own defence. Owing to difficulties in the conduct of his defence the jury was discharged. A further retrial then took place and the appellant was convicted. He appealed against conviction and argued that the convention which provided that if a jury disagreed on two occasions the prosecution would not seek a further trial should also apply to the circumstances of this case where the jury on the first occasion convicted.
The Court of Appeal held, however, that when a serious crime is committed and a clear case to answer as far as a defendant was concerned is established, the clear public interest lies in having a jury decide positively one way or the other whether that case was established.
In the course of his judgment, Kennedy L.J., considered the reasons for the existence of the convention, stating (paras. 18 and 19):-
We see no reason to conclude that it should apply in the sort of circumstances with which we are concerned in this case. Furthermore, we would not elevate it into a proposition of law. We do have to have in mind, for example, the situation which might arise if one jury which disagreed was shown consequently to have been interfered with, or some highly persuasive piece of evidence were to emerge during the course of a retrial, too late perhaps to be used in that trial but capable of constituting devastating evidence on behalf of the Crown if there were to be further proceedings.”
It must be stressed that the complaint here is not just on the ground of delay but also on the ground that it was quite wrong that these defendants should have been put on trial not for the second but for the third time after so many years and when one conviction had already been quashed and when one jury had been unable to agree on a verdict. It may be contrary to due process and unacceptable as a separate ground from delay that the prosecution having failed twice should continue to try to secure a conviction. In this case however both factors fall to be considered.
Their Lordships recognise that the trial judge has a margin of discretion in these cases and that they will not readily interfere with the exercise of this discretion. After careful consideration, however, they are satisfied that the combination of these two factors required the trial judge in this case to stay the third trial. For the prosecution to continue was wrong in principle and constituted a misuse of the criminal process.”
Nonetheless, there clearly exists in England and Wales a settled practice whereby, at least in the case of successive jury disagreements, a third trial is seen as going beyond the conventional practice. Different considerations may well arise where there have been mistrials occurring for other reasons. Whether this is expressed as a rule of practice or rule of law may ultimately be a matter of semantics.
THE POSITION IN IRELAND
In Ireland, the principle of double jeopardy has only been seen as applying in cases where a person tried for a criminal offence has been either acquitted or convicted. In either situation, a plea of autrefois acquit or autrefois convict will operate to prevent any further steps by the prosecution. The general principles were summarised by Murray C.J. in Registrar of Companies v. Anderson  1 IR 21 where he outlined the position in the following manner at pp. 26 and 27:-
I suppose if a prosecution was initiated against a person for an offence for which he had previously been prosecuted and was awaiting trial, he or she might well invoke the rule of double jeopardy in a general sense but the fundamental basis for resisting the second prosecution would be grounded more on an abuse of process or that the court concerned with the second prosecution had no jurisdiction to deal with the matter when another court was already seized with an existing prosecution for the same offence.”
In Kelly the appellant had been tried for murder, convicted and sentenced to death. He appealed to the Court of Criminal Appeal and the conviction and sentence were quashed and a retrial ordered in accordance with the provisions of the Courts of Justice Act 1928 on the ground that after the trial had concluded the accused had ascertained that certain persons, whom he named, would give evidence on his behalf which, if accepted by a jury, would conclusively establish his innocence of the crime of which he had been convicted. He was retried in the Central Criminal Court but the jury were unable to agree upon a verdict and were accordingly discharged. The accused was again put upon trial, but before the trial opened he caused an application to be made that the indictment be quashed on the basis that s.5(1)(b) of the Courts of Justice Act 1928 contemplated only one trial, so that no order for a retrial could be made thereunder, even if the first trial was aborted by reason of the failure of the jury to agree upon a verdict.
The provisions of the sub-section stated:-
In Registrar of Companies v. Anderson  1 IR 21, Geoghegan J. (at p.29) highlighted what he described as the “three essential protections” included in the principle of double jeopardy as being:-
2. protection from retrial after a conviction;
3. protection from being punished multiple times for the same offence.”
This line of reasoning is entirely consistent with that outlined in the American jurisprudence and in the reasoning offered by Justice Holmes in Kepner v. United States 195 U.S. 100 (1904) when he suggested (at p.134) that there is only ‘one continuing jeopardy’ until a case is finally disposed of; that is to say that jeopardy may be seen as continuing until conviction or acquittal.
Certainly no Irish legislation contains any provision providing a bar to further trials where a conviction has been quashed for trial error, or where there has been jury disagreement. Specifically, the Criminal Procedure Act 1993, which repealed and replaced section 5 of the Courts of Justice Act 1928, contains no such provision. Section 4 of the Act of 1993 permits the Court of Criminal Appeal to quash a conviction and order an applicant to be retried and that power is not subject to any words of restriction. Section 4 of the Act refers to the position on retrial, stating:-
From the foregoing brief review of the legal position in a number of common law jurisdictions, including our own, I am satisfied that the applicant in the present case can not invoke the principle of double jeopardy as the basis for seeking to prohibit any further trial. He has never been convicted or acquitted of either of the two offences in respect of which a retrial is proposed. There has been no jury determination in respect of either charge. The applicant is in continuing jeopardy in relation to those offences.
However, as is apparent from both the authorities in the United States and in Britain, there must come a time in the criminal process where repeated trials of a citizen may come to be seen as oppressive and as an abuse of discretion on the part of the Director of Public Prosecutions. It may become an unfair procedure in itself to re-try. Put another way, a “breaking point” may be reached where no further trial should be permitted if the fairness and due process requirements of Article 38.1 of the Constitution and Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms are to be properly observed.
I do not think that there should be an over-simplified “one size fits all” approach to the question of how many criminal trials for the same offence should be permitted. An oversimplified or stark black and white approach to the issue would, in my view, be a mistake. As Kennedy L.J. pointed out in Henworth, jury disagreement may occur in unusual circumstances and for unusual reasons which might suggest that a further trial should take place. Nevertheless I think that in the ordinary course two trials which end in jury disagreement should be seen as an adequate discharge of the public’s interest in the prosecution of crime unless there are unusual factual circumstances which suggest otherwise. A factual analysis arising in an application to prevent a third trial would have regard to matters such as the following:-
1. The seriousness of the offence or offences under consideration.
2. The extent, if any, to which the applicant may himself have contributed to any mishap which led to the requirement for a further trial. By way of example, the first trial of the applicant (in relation to the complainant TL) collapsed because of defence error. It would be in my view inappropriate to accede to a defendant’s request for relief where the applicant himself was the cause of the earlier trial mishap.
3. Any period of delay which is plainly excessive and beyond the norm for cases of the particular type and the reasons for such delay. A court will necessarily take into account in this context the considerable delay likely to arise in mounting any re-trial. It is now unusual to have a re-trial immediately after an aborted trial, such as occurred in years past, notably in The State v McMullen  2 I.R. 9, where the re-trial took place two days after the first trial.
4. The extent to which the case now to be met has altered from that which was considered in previous trials.
Counsel for the Director has argued that the Court should only intervene to review a decision of the Director to prosecute when there is evidence of mala fides or of an improper motive or improper policy. I am satisfied that O’Neill J. was entirely correct in holding that the matter under consideration in the instant case has little or nothing to do with the Director’s decision to initiate a prosecution, as was the case in The State (McCormack) v. Curran  IRLM. 225 and Eviston v. Director of Public Prosecutions  3 IR 260.
The case of Eviston v. Director of Public Prosecutions does, however, highlight that a court may invoke the concept of fair procedures to halt a prosecution in particular circumstances. In Eviston, the Court intervened to prohibit a prosecution in circumstances where the Director had decided - with ample grounds for doing so - not to prosecute Mrs. Eviston in relation to a driving offence. He later changed his mind in circumstances where the family of the deceased victim of the road accident in which Mrs. Eviston had been involved made representations by letter to the then Minister for Justice. The Director reversed his original decision without having any new or additional evidence and having already notified Mrs Eviston of his intention not to prosecute. Both the High Court and this Court had little difficulty in acknowledging the basic unfairness of allowing a prosecution to be brought in such circumstances. As stated by Keane C.J. at p.299:-
Looking at the facts of the present case, I would observe at the outset that the trial process has been in train since 2002. While O’Neill J referred to the prospect of five trials of the applicant, there have been two trials only on the charges under consideration. The trial in respect of the first complainant was severed from the other complainant’s case at the request of the applicant, and the jury was discharged in the first of the trials in relation to the first complainant because of an error on the part of the defence. I do not see that the applicant can build a case on either of these grounds which in any event relate to different charges involving a different complainant.
On the scale of gravity of sexual offences, however, the surviving charges in this case can only be described as being at the less serious end of the spectrum. In so saying I do not ignore the huge distress described by the complainant. However the offences occurred many years ago, mainly between 1993 and 1994 and there has thus been considerable delay in bringing this matter to a conclusion. This Court has frequently commented upon the deleterious effects of delay in the context of criminal prosecutions.
The medical reports make it abundantly clear that the applicant and his family have suffered enormously as a result of the accusations which have been extremely damaging in the small rural community in which the parties reside. The applicant was asked to leave his position as trainer for the local GAA club. His wife has been alienated from her own family and driven to taking anti-depressants. His eldest daughter was verbally abused at school by some girls who asked her questions such as “When did your father last rape somebody?” His other children have also become withdrawn and stressed. The applicant’s mother died during the court hearings and the applicant believes her death was hastened by the stress of the ongoing proceedings. The applicant himself missed work at times and found it difficult to socialise or go out with his wife. His psychiatrist says that he is under “very major stress”.
There is no suggestion that the applicant himself bears any responsibility for the prolongation of the criminal proceedings, albeit that he can not invoke the first aborted trial in aid of his application. However, any error which may have occurred at that particular juncture was not his personal fault.
On a more general basis and because it is one of the factors to which I have adverted, I see no basis for holding that in the context of any re-trial (if one were to be permitted) the State would be precluded from serving a Notice of Additional Evidence if some further information or evidence had come to light between a first and subsequent trial: the Criminal Procedure Act 1967 so permits. I feel it necessary to mention this point as the trial judge expressed concerns that repeated trials increased the risk of an innocent man being convicted through the ‘adjustment’ of evidence where it was seen to have been inadequate in previous trials. I am not quite sure what he meant by this comment which, on one view, implies that evidence might be fabricated or doctored if a re-trial were to be permitted. To the extent that the trial judge was expressing such a view or deriving a basis for such a view from the ‘evidentiary insufficiency’ cases in the U.S. I do not believe this to be an appropriate inference from those cases. Furthermore, there is no suggestion in this case that the evidence ever changed from one trial to the other.
Reviewing the case as a whole, however, I see no circumstances which suggest that there are unusual or exceptional circumstances which would justify treating this case as one where a third trial should be permitted following the two jury disagreements to date.
I would therefore dismiss the appeal and affirm the order of the learned High Court judge on the grounds I have identified, namely, abuse of discretion and fair procedures.