JUDGMENT of Mr. Justice Hardiman delivered the 25th day of January, 2011.
I agree, save perhaps in one particular, with the judgments of Denham J. and Fennelly J. in this case and therefore agree that the appeal must be dismissed. However, for the reasons which appear below I wish to add a few words.
The length of time occupied by this case is a cause of very grave concern to me. The applicant is charged with fourteen counts of indecent assault against the complainant which are alleged to have occurred between early 1974 and early 1978. More than twenty years after the last of the offences is alleged to have occurred, in 1999, a complaint was made to the gardaí. A criminal investigation ensued with the result that the appellant was charged and eventually returned for trial on the 28th April, 2004. He pleaded not guilty and was duly arraigned and given in charge to a jury on three separate occasions: on the 17th January, 2006, the 4th April, 2006 and the 23rd May, 2006. On each occasion the jury was discharged by the learned trial judge by reason of evidence which the trial judge considered to be inadmissible and prejudicial to the applicant.
The Director of Public Prosecutions, perhaps unprecedentedly, decided to put the appellant on trial on a fourth occasion. The trial was fixed for the 19th December, 2006. But on that date a medical certificate in respect of the complainant was produced with the result that trial did not proceed and was further adjourned. At this point the applicant sought prohibition of a fourth trial by way of judicial review.
The sole ground on which leave to seek judicial review was sought was that:
It will therefore be seen that the issue raised by the appellant was as to whether a fourth trial, in and of itself, would amount to an abuse of the process or a breach of the applicant’s constitutional rights.
After the respondent had put in a Statement of Opposition, verified by the affidavit of Mr. Hutchinson, Solicitor, the appellant’s solicitor, Mr. Burke, filed a replying affidavit, the second affidavit filed on behalf of the applicant.
In this affidavit there was for the first time a complaint of delay. There was also an entirely new allegation that, whereas the applicant was first interviewed in respect of these matters by the gardaí in April, 2003, he had previously been “the subject of a written demand for money from the complainant. This document was exhibited. It is a letter dated the 29th November, 2002, from the complainant to the applicant. Insofar as is relevant it said:
“I am letting you know that I am going ahead with the Court, I was up with the guards on Tuesday and I told them that I want €5,000 of you before the 15th January, 2003, if you don’t come up with the money by then they will arrest you on the 16th January… nobody only the guards know that I am sending you this letter, they told me you will get at least ten years in jail. So it is your choice. I want a letter wrote back to me in two weeks time, so I can let the guards know. Don’t take this letter as a joke because the guards have a photocopy of it.”
This, plainly, is a threat to proceed with the criminal charge, which it is said will lead to a sentence of at least ten years, unless the appellant pays the complainant €5,000. It is also claimed, surely falsely, that the guards are aware of this threat and will arrest the applicant unless he “come[s] up with the money” by the specified date. There is of course no reason to believe that the statements made about the gardaí in the letter are true, but it is undisputed that the letter quoted above was written by the complainant to the defendant/applicant.
In my view, there are, or might be, substantial issues both of delay and issues arising from the letter quoted. One cannot say more for the reasons set out below.
Although the question of delay and of the letter was raised by the appellant’s solicitor in his affidavit, neither question is reflected in the grounds on which leave to seek judicial review was sought. Furthermore, after the facts had been deposed to on affidavit by Mr. Burke, no attempt was made to amend or extend those grounds.
In the argument on the hearing of this appeal, Mr. Michael Counihan S.C. (who did not appear in the High Court or at the criminal trials) submitted that the material in relation to delay and the letter was in fact before the Court and might be considered in the interest of doing justice between the parties. For the Director of Public Prosecutions, Ms. Sunniva McDonagh S.C. said that her side was not on notice of any intention to rely on these matters and no attempt had been made to bring them properly into the case.
In too many judicial review cases, it will be found that little attention has been paid to the absolute necessity for a precise defining of the grounds on which relief is sought until the case is actually before the Court. In my view, this case furnishes an extreme example of this unfortunate tendency. The delay in the case and the consequent anxiety to the defendant are an obvious feature but they are not relied upon at all in the grounds and are only developed in the Solicitor’s replying affidavit. There is no attempt to define the precise level of anxiety and the effect if any on other family members, as was done in D.S. v. The Judges of the Cork Circuit and the DPP [2008] 4 IR 379.
If delay was an obvious feature of the case, the letter demanding money was the most dramatic feature of the case. But this was not mentioned either until the solicitors replying affidavit does not feature at all in the Statement of Grounds. There is clearly scope to argue that such a development may affect the prosecution’s ability to proceed to a further trial: see M.G. v. DPP [2007] 2 IR 738. The defendant was aware of this letter some years prior to the first trial and one must assume that his legal advisers were aware of it also. Nothing was done to bring it into the case in a proper way and put the other side on proper notice of it.
The concept of a fourth trial of a person on the self same charges as those that were the subject of the first three is a matter of grave concern to me. I note that in D.S., already cited, Denham J. held that:
“… a longstanding 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.”
Here, one is dealing with not a disagreement of a jury following a full trial but with a discharge of a jury by the learned trial judge. In my view, this Court must proceed on the basis that the learned trial judge’s decision to discharge the jury was the correct decision. If there is thought to be any suggestion, either in the judgments of my colleagues or in the judgment of the learned High Court Judge, that the evidence the complainant gave may in fact have been admissible, or at least may not have been such as required a discharge of the jury, I wish, with great respect, to say that I do not agree with any such suggestion. This case was not made in the Statement of Opposition on behalf of the Director. The Court has not been furnished with the transcripts of the trials, and neither (we were informed) was the High Court. I would not be prepared to conclude, without full argument in a case where the matter was relevant, that the basis on which the learned trial judge discharged the successive juries was incorrect in law.
But I could not assent to the proposition, which is the appellant’s sole proposition on the pleadings in this case, that a fourth trial, that is the giving in charge of the appellant to a jury “to try and inquire whether he is guilty or not guilty” is in and of itself, and in all circumstances an abuse of process. There may be many circumstances, perhaps extremely rare, where such a trial might be justified: perhaps in the face of repeated interference with witnesses or jurors. But I am of the opinion that the circumstances that could justify a fourth trial, whether after discharge or after disagreement, must be extremely rare and require to be fully established and explained by the Director. I regret that, on the hearing of this appeal, counsel for the Director was not instructed as to whether, and if so how often, any person had been put on a trial on a fourth occasion on the self-same charges, in Ireland since 1922.
There is another feature in the case on which would be unrealistic not to comment. The Book of Evidence, which has been exhibited before us, contains allegations by gardaí that the appellant made significant admissions when interviewed by them. The Court was told these admissions were duly recorded on video tape: I would have no regard to them if they were not.
Mr. Counihan S.C. urged us not to have regard to these alleged admissions because they had not been proved, as yet at least, at any trial. In my view this is too nice a distinction. This Court is not engaged in the criminal trial of the appellant but in a civil proceeding in which the appellant asserts that it would be an abuse of process to put him on trial again and that there is at least a real risk that such a trial would be unfair. The presence of the alleged admissions is not irrelevant to the question of fairness. In the pleadings and affidavits in this case, the appellant has not engaged with the allegation of the admissions in any serious way and in my opinion the onus was on him to do so.
I would dismiss the appeal.
