Judgment delivered by Macken, J. on the 24th day of March, 2011
This is the appellant’s appeal from the refusal by the High Court (Hanna, J.) of his application, based on undue delay, to restrain his further prosecution before Kilkenny Circuit Criminal Court. The appellant faces a charge of sexual intercourse with a mentally impaired person, contrary to s.5(1) of the Criminal Law (Sexual Offences) Act 1993. The offence was alleged to have occurred on 1st July, 2001. On the 21st July, 2010 this Court, at the conclusion of the hearing, announced that the appeal was not successful. This judgment sets out the reasons therefor.
Background
The appellant was first arrested and questioned on 2nd July, 2001. He was rearrested and charged on 16th September, 2002 and sent forward for trial in March, 2003. The first trial took place in March, 2006 during which the jury was discharged on the first day following evidence given by the complainant. The second trial commenced in May, 2007 and the jury was again discharged, this time on the third day of the trial, because of an apparent prejudicial notation made on a book of photographs handed to the jury. The appellant was granted leave to issue these judicial review proceedings on the 9th July, 2007. The basis for the relief sought was: (a) delay arising from the lapse of time between the date of the alleged offence and his trial, together with (b) the disadvantage and/or oppression suffered by him on having endured two abortive trials because the jury was discharged on both occasions, together with (c) the likelihood of a real and serious risk a third trial would be unfair.
The Judgment
In the High Court the learned judge held that there had been excessive culpable delay, at least in respect of some periods, on the part of the prosecution. However, applying the balancing test laid down in P.M. v D.P.P. [2006] 3 IR 172 and in Devoy v. The Director of Public Prosecutions [2008] 4 IR 235, he was not satisfied, on the facts of the present case, that the appellant had suffered such prejudice as would demonstrate a real and serious risk of an unfair trial. He could not glean from the evidence before him, he said, that the stress and anxiety complained of by the appellant was any greater than that which would understandably be suffered by any person facing such a serious criminal charge. Following the approach adopted by O’Neill, J. in his judgments in both D.S. v. The Director of Public Prosecutions [2007] 2 IR 298, as affirmed on appeal by this Court [2008] 4 IR 379, and in Michael McGrealy v. The Director of Public Prosecutions [2007] I.E.H.C. 472, he further found that in the absence of a completed trial on the charge, the right of the public to prosecute the crime had not been fully vindicated, and it would not therefore be appropriate to grant an order of prohibition. The learned High Court judge also considered, and rejected, the grounds advanced on behalf of the appellant pursuant to the European Convention on the Protection of Human Rights and Fundamental Freedoms (“the Convention”).
The Notice of Appeal
In this appeal, the appellant contends that the learned trial judge erred in law on 35 separate grounds. Many of these can be combined and dealt with together. Insofar as the main grounds are concerned, they cover, in substance, the following:
The learned High Court judge erred in law:-
Grounds 1 & 2
• in failing to find that the accumulated periods of delay, that is to say, a period of six years and three months between the commission of the offence and the second trial date should be treated as presumptively prejudicial, and in failing to consider the cumulative period of delay complained of;
• in failing to examine each period of delay separately, and in finding that the only period of excessive and culpable delay was the 14.5 months between the arrest and charging of the appellant;
Grounds 6, 7, 8 & 9
• in not finding that the failure of the respondent to disjoin the appellant’s trial from that of his co-accused lead to further excessive delay;
Grounds 9, 14 & 22
• in failing properly to balance the appellant’s right to an expeditious trial with the right of the community to have him prosecuted;
Grounds 15, 16, 17 & 18
• in failing, while carrying out the said balancing exercise, to have regard to the uncontroverted evidence of the serious anxiety suffered by the appellant and the effect of the delay on his family, personal and employment life;
• in finding that the stress and anxiety was not deposed to by the appellant but only by his solicitor;
• in appearing to suggest or require medical evidence of anxiety in the circumstances of the present case;
• in failing to have regard to the repeated statements in case law that it is not the quality of the stress and anxiety that is of relevance but rather the duration of such anxiety that a speedy trial is designed to protect against;
Grounds 33 & 34
• in failing to find that a retrial would be in violation of the appellant’s rights under article 38 of the Constitution and of article 6 of the Convention.
Relevant Dates
The major ground advanced at the hearing before this Court, and on which the appellant contends the learned High Court judge erred, is one by which counsel on his behalf argues he is entitled to an order prohibiting of any further retrial, because two earlier trials have not led to his conviction, and when combined with the culpable inordinate delay which occurred, prohibition is essential to avoid a real and serious risk of an unfair trial.. Before considering the arguments raised, it is necessary to set out the sequence of relevant dates, which are as follows:
2nd July, 2001: Appellant notified of complaint made against him.
21st December, 2001: Order permitting respondent to retain appellant’s forensic samples.
16th September, 2002: Appellant re-arrested and formally charged.
4th November, 2002: Book of Evidence served. Case adjourned.
20th January, 2003: Appellant not present. Bench warrant issued.
3rd March, 2003: Appellant sent forward for trial. An indictment preferred.
11th March, 2003: Appellant remanded on bail.
15th July, 2003: Case adjourned at prosecution’s request. Unlikely to have been reached.
4th November, 2003: Case adjourned at request of prosecution to January and at request of defence to March sessions.
9th March, 2004: Case adjourned. Unlikely to have been reached.
13th July, 2004: Case adjourned at prosecution’s request. Co-accused taking judicial review proceedings.
5th October, 2004: Case adjourned at prosecution’s request, for same reason.
15th February, 2005: Case adjourned at prosecution’s request, for same reason.
21st June, 2005: Case adjourned at prosecution’s request. Sergeant not available.
27th October, 2005: “Revised” indictment sent to appellant. Co-accused included. Case adjourned.
1st November, 2005: Case adjourned at prosecution’s request.
25th January, 2006: Respondent applied to adjourn the trial and sought to revoke bail of co-accused.
22nd March, 2006: Trial (of both) commenced. Trial judge discharged the jury.
25th April, 2006: Case adjourned (essential witness of co-accused missing).
27th June, 2006: Case adjourned (essential witness of co-accused missing).
7th November, 2006: Case adjourned at prosecution’s request. Forensic witness not available.
23rd January, 2007: Case adjourned. Transcript not ready.
1st & 2nd May, 2007: Retrial (of both men) commenced. Trial judge discharged the jury, on 3rd May, 2007.
9th July, 2007: Leave to issue judicial review proceedings granted.
General Argument
On behalf of the appellant, senior counsel Ms. Boyle, argues, in general, that the principles of law, which will be discussed further below, in particular the constitutional entitlement to a trial with expedition, combined with a necessary limit on the number of trials to which a party may be subjected, is designed to protect the interests of an accused. When these two principles are tested in the present case, the requirement that the continuing prosecution of the appellant be prohibited becomes compelling. On the issue of the overall delay between the commission of the alleged offence and the date of the first trial, being five years, and the date of the second trial, being more than six years, this was clearly excessive, counsel submits, and, as was found by the learned High Court judge, the reasons for the delay, apart from one excusable period, cannot be laid at the door of the appellant. On this ground alone the appellant is entitled to an order of prohibition. Even if the appellant were not so entitled, the additional factor of the serious anxiety and interference suffered by him in his personal life, which has continued for a period of seven years and through two criminal trials, if not also conclusive of itself, triggers the balancing test which should be resolved in his favour. In the further alternative, and relying on an opinion of Justice Stephens of the United States Supreme Court, there is a distinct and serious possibility that the appellant will be subjected to a further unfettered third trial, which similarly gives rise to an entitlement to prohibition
According to senior counsel Mr. Collins, for the respondent, the learned High Court judge was correct in holding that, while there had been excessive and culpable delay on the part of the prosecution, by reason of which the required balancing exercise was engaged, nevertheless, in applying the relevant case law, the learned judge made no error in law in not being satisfied, on the facts of this case, that the appellant had suffered such prejudice as would demonstrate a real and serious risk that he could not obtain a fair trial. The learned High Court judge was also not in error in finding that, following the approach adopted in the case law, in the absence of a completed trial on the charge, the right of the public to prosecute the crime had not yet been fully vindicated. Counsel also submits that, having considered and rejected the arguments advanced on behalf of the appellant by reference to provisions of the Convention, the learned High Court judge had correctly done so. In the foregoing circumstances, it is contended on behalf of the respondents that the legal principles governing proceedings of this nature were applied in a wholly unexceptional fashion.
Grounds 1 and 2
First, dealing with Grounds 1 and 2, the appellant alleges that the learned High Court judge should have found the cumulative period of more than five years, between the commission of the offence and the first trial to be “presumptively prejudicial”, such as to entitle the appellant, ipso facto, to an order of prohibition. The learned High Court judge had found that the delay in question was significant. Nevertheless, he wrongly failed to find that the delay was such, as was found by Finlay, C.J. in Director of Public Prosecutions v. Byrne [1994] 2 I.R. 236, as to constitute, without more, a violation of the appellant’s constitutional right to an expeditious trial. The appellant also relies in that regard, inter alia, on the Privy Council decision, delivered by Hutton, L. in Alfred Flowers v. The Queen [2000] 1 WLR 2396.
The respondent, on the other hand, submits that on a correct reading of Alfred Flowers v. The Queen, supra., although the Privy Council found the delay to be “presumptively prejudicial”, it nevertheless went on to consider three other factors, including: (a) the reason for the delay; (b) the defendant's assertion of his right; and (c) prejudice to the defendant. Having done so, the Privy Council refused the relief sought, finding that prejudice to the defendant arising from the lengthy delay had not been demonstrated. In any event, it is argued by the respondent that the legal principles applicable are those established within this jurisdiction. Those principles, it is contended, make it clear that the issues are to be considered on a case by case basis, and they include: (i) an assessment of the length of delay; (ii) the reason for the delay; (iii) the accused’s assertion of his rights; and (iv) prejudice to him. The learned High Court judge had applied all of these criteria to his assessment of the lapse of time and its consequences. There was, therefore, no basis upon which his finding can be or ought to be disturbed on appeal.
Conclusion
I am satisfied that there is no distinction, in substance, between the principles enunciated in Alfred Flowers v. The Queen, supra., and those – by now well established – found in the case law of this jurisdiction, insofar as delay cases, in general, are concerned. In the application of those principles, those established in this jurisdiction are clearly appropriate of application in this appeal, and provide in their entirety a sufficiently sophisticated and nuanced test, permitting their proper application to the variety of situations which may present themselves to courts adjudicating on them, including this Court. While undoubtedly there have been, and will be, cases where, by reason of the extraordinarily long period of time which has elapsed, such as the extremely lengthy period in Director of Public Prosecutions v. Byrne, supra, and which, without more, may lead a court to grant an order of prohibition, the period of time in the present case, viewed in its factual context, cannot be considered to fall into such a category. In adopting the principles found in recent Irish case law, which require a balancing test to be carried out, save in such exceptional cases as occurred in Director of Public Prosecutions v. Byrne, supra., the learned High Court judge made no error in law.
On the application of the appropriate principles by the learned High Court judge, my conclusion on this must be deferred to the end of an exposition of the several grounds of appeal raised and the legal bases for these, set out in the next sections of this judgment, which concern specific errors alleged in respect of discrete periods of time, and other matters leading to the finding by the learned High Court that culpable delay had occurred, and that the balancing test should be applied.
Grounds 3 to 5 and 10 to 12
Essentially under these grounds it is alleged that: (a) the trial judge failed to examine each discrete period of delay, and therefore failed to ascertain and make findings as to the reasons for the delay in each such period; (b) found that the only period of excessive and culpable delay was one of 14½ months before charging the appellant; (c) failed to weigh in the balance, against the respondent, the fact that the case was not reached in the Circuit Court list on five separate occasions after the return for trial, which constituted a delay of one year and four months; (d) failed to find that the delay of nine months between June, 2005 and March, 2006, not explained by the respondent, should also have been weighed in the balance against the respondent; (e) failed to find that the delay of one year and one month between the date of the first trial in March, 2006, and the proposed retrial in May, 2007, was attributable to and should be weighed in the balance against the respondent; (f) erred in finding that the appellant had made no effort to identify any normal timescale which ought to have applied to assess the delay in bringing him to trial in a non-complex case; and (g) failed properly to assess an overall period in excess of six years where the delay, or a substantial period of the delay, was attributable to a decision made by the respondent that the appellant be tried with another party.
Further, while certain periods of delay were based on “systemic delay”; that systemic delay had not been taken into account in weighing in the balance the rights of the parties, and should have been held against the respondent. The learned High Court judge placed some emphasis on this Court's decision in Devoy v Director of Public Prosecutions, supra., but that judgment only became available one or two days before the High Court hearing and concerns, inter alia, the fact that there had been no real attempt to identify what the acceptable delay norm ought to have been. Counsel argues that this is not a relevant factor in this case because, even allowing for delays in the court system, had the decision not been made by the respondent to try the appellant with another party, the trial of the appellant would have been ready to commence within two years of the return for trial date, a matter dealt with under the next grounds.
On these grounds the respondent replies as follows. The basis of four of the grounds relating to an alleged failure to examine each period of delay cannot stand, in light of the clear evidence in the High Court judgment of a consideration of the very facts referred to. The periods of time which may have been inadequately explained are insignificant in the overall period of delay complained of. There were good reasons for having the appellant and his co-accused tried together. The learned High Court judge found that there was a lapse of time which was excessive and culpable, and which necessitated a consideration of whether there was a real and serious risk of an unfair trial to the appellant, and the application of the balancing test. Counsel points to the fact that the appellant appears to contend, not that he will not receive a fair trial by reason of the delay involved, but rather that he cannot do so by reason of the risk of facing a third trial, where there were two prior aborted trials.
Grounds 6 to 9
On the issue of delay, Ms. Boyle, for the appellant, argues a further discrete ground of appeal, namely, that the above decision of the respondent to try the appellant with another man, who had originally been sent forward and indicted separately, had the potential to, and did in fact, lead to further delay. The learned High Court judge failed to give adequate consideration to the fact that this decision had the effect of the appellant’s trial not proceeding between February, 2004 and April, 2005 while the co-accused was taking judicial review proceedings. The failure of the respondent to separate or disjoin the appellant’s trial from that of other party, whose actions were excessively delaying the appellant’s trial when that accused’s presence at the appellant’s trial was not necessary. Finally, it is said, there were repeated efforts on the part of the appellant himself to secure a trial separate from his co-accused, each of which applications was opposed by the respondent. The learned High Court judge failed to give any sufficient regard to these matters.
Mr. Collins argues that the learned trial judge accepted there were sound reasons for having the appellant and the co-accused tried together, and these reasons, substantial and valid, were not controverted in evidence. Their existence prevents the appellant from successfully relying upon the judgment of O’Leary, J. in Guihen v. Director of Public Prosecutions [2005] 3 IR 23, where the respondent was criticised for not having adverted to the reasons why a joint trial of the various defendants was desirable. The common thread in Grounds 6 to 9, it is said, appears to be the alleged failure of the High Court judge to attach blame to the respondent for deciding to try the appellant and his co-accused together, having regard to the potential that decision had for delaying the appellant’s trial. The respondent argues that the appellant cites no authority in support of such a proposition. The evidence in the High Court was that the respondent had reviewed his decision to proceed by way of joint trials when it became apparent that some delay would arise from the co-accused’s judicial review proceedings. Finally, counsel points to the fact that the grounds upon which leave was granted to commence these proceedings did not challenge the legality of the respondent’s decision to seek to try the appellant and his co-accused together. Such a challenge would have amounted to a collateral attack upon the decisions of the several trial judges who refused applications for separate trials.
Conclusion on Grounds 3 – 5, 6 – 9 and 10 - 12
The learned High Court judge invoked, inter alia, the decisions in PM v. Director of Public Prosecutions, supra. and Devoy v. Director of Public Prosecutions, supra. Citing from these Supreme Court cases, he adopted the principles of law enunciated by Kearns, J. in the following terms:
“The principles governing prosecutorial delay in Irish Law have been laid down in a number of Irish cases including P.M. v. Malone [2002] 2 I.R.560 and P.M. v. DPP [2006] 3 I.R.172 and may be summarised as follows:-
(a) Inordinate, blameworthy or unexplained prosecutorial delay may breach an applicant’s constitutional entitlement to a trial with reasonable expedition.
(b) Prosecutorial delay of this nature may be of such a degree that a court will presume prejudice and uphold the right to an expeditious trial by directing prohibition.
(c) Where there is a period of significant blameworthy prosecutorial delay less than that envisaged at (b), and no actual prejudice is demonstrated, the court will engage in a balancing exercise between the community’s entitlement to see crimes prosecuted and the applicant’s right to an expeditious trial, but will not direct prohibition unless one or more of the elements referred to in P.M. v. Malone [2002] 2 I.R.560 and P.M. v. DPP [2006] 3 I.R.172 are demonstrated.”
In dealing with the matter from the perspective of these cases, which have been followed by this Court in several other cases, I am satisfied that the learned High Court judge considered the various time periods which had elapsed before the first aborted trial, and the separate period which elapsed to the date when the second trial had to be abandoned. Stating that at the time of the hearing of the High Court judicial review proceedings, a period of almost seven years from the date of the alleged offence had elapsed, he continued:
“… apart from one incident in which the applicant’s mother was dying and a bench warrant had to be issued, none of the delay in this case can be laid at the applicant’s door.”
He did not accept, as the respondent had contended, that it was a complex case, and in that regard analysed the Book of Evidence and the number of witnesses involved. He found that in the absence of any guideline as to what an appropriate timescale might be and even being generous to the prosecution, the unexplained delay in the case in charging the appellant was excessive. He considered that the case was not on all fours with Director of Public Prosecutions v. Guihen, supra. He found, however, that while such delay as arose in the case between arrest and charge was significant, it was not at the scale as envisaged by Finlay, C.J., in Director of Public Prosecutions v. Byrne, which would, without more, constitute “a violation of the applicant’s constitutional right to an expeditious trial”.
The appellant is correct is saying that the learned trial judge did not enter into a separate detailed analysis of the various periods making up further delay, apart from the above specified period. He did, however, consider the reasons for those delays and their overall effect. This criticism on the part of the appellant does not, however, appear to have made any significant difference, because on any analysis of the factual matters giving rise to delay, and comparing the delay in question to that arising in Director of Public Prosecutions v. Byrne, supra., the delay in the present case, brought about in part by delay, specifically found by the learned High Court judge to be caused by the prosecution, and in part by reason of the two aborted trials and overcrowded court lists, not being the fault of the appellant, is not of such a length or nature as to constitute an automatic entitlement to prohibition on the basis of the principles laid down in that case. Nevertheless, the question to be considered was whether there was such significant blameworthy delay on the part of the prosecution of a lesser degree, as would trigger the balancing exercise envisaged by the case law, and he correctly found that it did.
Separate from the delay periods brought about by the above matters, there remains the further particular delay period complained of by the appellant arising from the failure on the part of the prosecution to disjoin the appellant’s trial from that of his co-accused, when that accused commenced judicial review proceedings, necessarily giving rise to further delay. Counsel on behalf of the respondent has pointed to the fact that this issue was considered by the respondent, as would be appropriate. The appellant, in turn, made several applications to Circuit Court judges for that separate trials. While the appellant was also fully entitled to do so, it is important to bear in mind that, although the respondent opposed those applications, the learned Circuit Court judges, on hearing the applications and the arguments of both parties, declined the direct separate trials. There is no evidence before this Court, and there appears to have been no evidence before the learned High Court judge, that any appeal was taken by the appellant from any of those decisions. I have to conclude that, in relation to such decisions, the learned Circuit Court judges were satisfied in law with the arguments on the part of the Director of Public Prosecutions that there were good grounds for resisting the applications, or were not persuaded by the arguments of the appellant that there should be such separate trials.
I have found that the learned trial judge made no error in his approach to the principles to be applied. As to the application of those principles in reaching his conclusion that there was excessive culpable delay in relation to the period specified, which brought into play the balancing test, he did not err in law on that ground either. Undoubtedly there was some delay, between February, 2004 and April, 2005, attributable to the fact that a co-accused brought judicial review proceedings. The learned High Court judge correctly found that it was not such, as to constitute serious, excessive or further delay, as would likely lead to a breach of the guarantee of an expeditious trial, even when considered together with the other delay periods, and could not lead to a consequent automatic order of prohibition. Nor did the learned trial judge, in failing to add all other periods of delay which occurred to the original excessive culpable period of delay which he found to exist, fall into error, by not considering that total period of delay complained of by the appellant to have been presumptively prejudicial in the sense in which that phrase was applied in Director of Public Prosecutions v. Byrne, supra. Not being in that category, the balancing test properly came into play.
Grounds 15 to 18
There are several matters alleged under these, all interrelated, and it is appropriate to set out the grounds of appeal as filed, which are the following:
15. The learned trial judge erred in failing, while carrying out the said balancing exercise, to have regard to the uncontroverted evidence of the serious anxiety suffered by the appellant and the effect of the delay on his family, person and employment life.
16. The learned trial judge erred in finding that the stress and anxiety was not deposed to by the applicant but only by his solicitor.
17. The learned trial judge erred in appearing to require medical evidence of anxiety in circumstances where the affidavit filed on behalf of the respondent contained a specific averment to the effect that it did not challenge any of the assertions made in the grounding affidavit sworn on the applicant’s instructions and on his behalf.
18. The learned trial judge erred in failing to have regard to the repeated assertions of this honourable court that it is not the quality of the stress and anxiety that is of relevance but rather, and particularly when a person is charged with a sexual offence, the duration of such anxiety that may infringe one of the interests of accused persons that a speedy trial is designed to protect.
The learned High Court judge, in the course of his judgment, found that he could not glean from the evidence adduced before him that the stress and anxiety complained of by the appellant was any greater than that which would understandably be suffered by any person facing such a serious criminal charge.
Miss Boyle, on behalf of the appellant, points to the existence of a series of cases in which stress and anxiety have been considered in some detail, and argues that the appellant comes clearly within the ambit of the principles established with those cases. Further, she contends that the tenor of the High Court judgment wrongly appears to suggest that the affidavit sworn on the appellant’s behalf by his solicitor, was not adequate. Rather, it implicitly but erroneously, and contrary to the case law, appeared to require medical evidence to be furnished in support of the appellant’s complaint of the anxiety and stress he suffered. Counsel for the appellant relies on the principles enunciated in joined cases Cormack v. Director of Public Prosecutions & Others and Farrell v. Director of Public Prosecutions & Others [2008] IESC 63, in the judgment of Kearns, J., on the issue of stress and anxiety, and, in particular, points out that, according to that case law, undue levels of stress and anxiety may be inferred as a matter of commonsense from the particular facts of the case, citing the following extract:
“I have previously expressed the view that it would be most unfortunate if cases of this nature came to be determined by reference to some form of contest between doctors called for an applicant on the one hand or the prosecution on the other.”
Counsel for the appellant also relies on the decision of Geoghegan, J. in PM v. Director of Public Prosecutions [2006] 3 IR 172, to the effect that “the size of the anxiety will be determined by the length of time, rather than on any qualitative basis”, and to comments of O’Leary, J., in Director of Public Prosecutions v. Guihen, supra. She contends that the stress and anxiety suffered by the appellant may be properly inferred in this case, as a matter of commonsense, in the uncontroverted evidence presented on his behalf. That such distress, anxiety and hardship has continued for a period in excess of six years, and, at the time of this appeal, in excess of eight years or more, and has been greatly exacerbated by the fact that the respondent now requires the appellant to face a third jury trial, must be a factor amounting to undue levels of stress and anxiety, as referred to in the case law.
The respondent, on the other hand, argues that the learned trial judge’s analysis of the evidence was correct, and having regard to that analysis, there was no undue stress or anxiety arising by virtue of the excessive culpable delay found to exist in the present case. The evidential basis for the assertion that the appellant suffered stress and anxiety by reason of the charge pending against him consists, the respondent says, of an affidavit made by the appellant “late in the day”, affirming the truth of the content of his solicitor’s affidavit in that regard, and counsel notes that the evidence of a professional, to which his solicitor refers in her affidavit, was not before the High Court.
Conclusion
The evidence as to stress and anxiety was set out in the following paragraph of the affidavit of the appellant’s solicitor, Ms. Moriarty, sworn on the 5th July, 2007:
“I say and believe and am instructed that the fact that six years have now elapsed since he was first questioned by the Gardai in relation to the charge has caused great distress, anxiety and some hardship to the Applicant; and that this distress and anxiety is greatly exacerbated by the fact that he is now facing a third jury trial.
I am instructed by him that he was born on 7 May 1961 and was brought up by his grandmother; that as a result of speech and reading difficulties he was assigned a special teacher for two hours of every day at school; that he left school at 12 and began working in the building industry; and that for many summers he has worked with fun fairs. He instructs me that he was let go from one of his employments because word had gone around that “he had raped someone”; that he had to leave his mother’s home and go and stay with friends in other towns for eight months for the same reason; that he was let go by his last employer (building) due to the number of days he was taking off to attend court; that he is at present working where he can around the country sawing down trees; and that he had intended to go to England but cannot do so because the trial is still pending.
I am further instructed that he has four children and was previously married; that his relationship with his eldest daughter in particular has been affected by the continuing criminal proceedings; that approximately six months ago he had become engaged to be married to an English woman who however has recently broken off the engagement finding it hard to accept the fact that his trial is not yet over.
I am further instructed by the Applicant that he would be physically ill, sweating, shaking, vomiting and unable to eat when notified by me, approximately a fortnight before each listing, that his case was to appear in a list.
Should this honourable court grant the Applicant leave to seek judicial review then he will seek liberty to file a supplemental affidavit exhibiting the report of a professional in relation to these matters.”
I am satisfied that, on a proper reading of the High Court judgment, the learned High Court judge was entitled to find that the evidence before him as to stress and anxiety, was no greater than might normally be suffered by a person facing such a serious criminal charge. Although the evidence in that regard was the above referred to affidavit, supplemented by the appellant’s affidavit affirming this, this was not a matter which was held against the appellant by the learned High Court judge, who stated:
“The stress and anxiety in this case is deposed to not by the applicant, but by the applicant's solicitor and while there's nothing improper in this, I simply cannot glean from the evidence before me …” (emphasis added)
The learned trial judge specifically had regard to the evidence adduced before him on behalf of the appellant. The argument of the respondent that the appellant’s affidavit came “late in the day” is not well founded in this particular case, since this did not affect the learned High Court judge’s approach. Further, while indicating that medical evidence would be welcome, “the absence of [a medical report] does not disqualify the applicant from making the case”.
In PM v Director of Public Prosecutions, supra., Kearns, J. stated:
“I believe that the balancing exercise referred to by Keane C.J. in P.M. v. Malone is the appropriate mechanism to be adopted by a court in determining whether blameworthy prosecutorial delay should result in an order of prohibition. It means that an applicant for such relief must put something more into the balance where prosecutorial delay arises to outweigh the public interest in having serious charges proceed to trial. In most cases, pre-trial incarceration will not be an element as an applicant will probably have obtained bail pending his trial. Secondly, while he may assert increased levels of stress and anxiety arising from prosecutorial delay, any balancing exercise will have to take into account the length of such blameworthy delay, because if it is a short delay rather than one of years, the mere fact that some blameworthy delay took place should not of itself justify the prohibition of a trial.” (emphasis added)
While accepting that there had been blameworthy delay, the learned trial judge did not consider that there was anything before him from which he could hold that the appellant was suffering from the element of undue stress or anxiety. He stated:
“… but it seems to me there is nothing from which I can hold that what this applicant is suffering is necessarily greater than the norm and the norm indeed would be great for any presumed innocent person facing a charge of this particular nature. So, I'm not satisfied that the level of stress and anxiety in this case is more potent than that which ordinarily and understandably [would] be experienced by an innocent person facing this charge. “
Having regard to the foregoing, it does not seem to me that the appellant can succeed in his contention that the learned trial judge erred in any respect in assessing, as he was obliged to, the level of stress and anxiety arising in the present case. It is insufficient for counsel on behalf of the appellant to say that “there was uncontroverted evidence of stress and anxiety” before the learned High Court judge. This is undoubtedly true, and it is clear from the judgment that he took that evidence at its face value. But that is not the end of the matter, because the learned High Court judge was obliged to assess that evidence with a view to seeing whether, as is provided for in the case law, the stress and anxiety contended for is something beyond what would normally be expected to occur, and arises by reason of delay. The learned High Court judge had before him evidence upon which he could reach the conclusion which he did. There can be no suggestion that he did not consider the evidence. Nor is there any suggestion that he took into account matters which he was not entitled to. Nor is there any suggestion that his assessment of the evidence before him was in any way perverse or irrational. In the absence of evidence which he considered might meet the established test for the assessment of stress and anxiety, the application of a “commonsense” approach cannot be substituted, if by such commonsense approach is meant that even in the absence of evidence of stress and anxiety above and beyond what would be expected to be suffered in the case of such a serious charge, it should be presumed to exist by virtue of excessive culpable delay by the prosecution, or by having to face a further trial where no full trial has yet occurred.
I am not satisfied that on any of the arguments adduced before this Court by counsel for the appellant, in her very able submissions, both written and oral, on this issue, they are such as to persuade me that the learned High Court judge failed to have appropriate regard to the facts and matters surrounding the claimed stress and anxiety, or that there were matters which he failed to take into account. In the circumstances, it is not necessary to set out further extracts from the additional case law, which has been referred to in part above, as well as in the High Court judgment, and in the submissions of both parties to this Court.
Grounds 14 & 22
Having dealt with certain other matters in relation to the issue of delay, and being satisfied that the appellant had established culpable excessive delay, the learned High Court judge properly then turned to address and identify areas of prejudice which might, as he said, “trump the right” of the public to prosecute offences on other grounds. Ground 14 reads as follows:
14. The learned trial judge erred, having found that there was culpable and excessive delay, in failing to properly balance the applicant’s right to an expeditious trial against the right of the community to have him prosecuted.
Under this ground the appellant contends that the learned High Court judge failed properly to balance the appellant’s right to an expeditious trial and the right of the community to have him prosecuted. The appellant reminds the Court first that his co-accused had been convicted, and contends that, in that regard, the rights of the community had been vindicated. In submissions the appellant does not put the matter further.
The respondent submits that such a contention is not readily understood, and that the appellant cites no authority to support what the respondent considers to be a novel assertion. The respondent submits that the fact that there may be two perpetrators of criminal offences does not, on its face, diminish the community’s interest in the prosecution of an offence allegedly committed by one of them, even if the other has been convicted of an identical, or similar, offence against the same person, and occurring on the same occasion.
Conclusion
I am satisfied that there is no basis in law for contending that the learned trial judge erred in any respect in relation to this ground of appeal, which cannot be supported by any case law, none being invoked. It is not necessary to consider it further.
Ground 22
There remains the argument propounded on behalf of appellant based on a modified application of the double jeopardy rule, arising under Ground 22, which reads as follows:
22. The learned trial judge erred in failing to give any, or any adequate, consideration to the submission that the principles underlying the common law double jeopardy rule were relevant when assessing the prejudice claimed by the appellant.
The appellant relies, inter alia, on the very fact that the respondent intends that the appellant should stand trial for a third time. While Ms. Boyle for the appellant accepts that, strictly speaking, the principle of double jeopardy does not apply to the facts of the present case, and that the first two trials of the appellant did not end in a jury disagreement, nevertheless, she relies, by analogy, on such double jeopardy rule as was the subject of the judgment of O’Neill, J. in DS v. Director of Public Prosecutions [2006] IEHC 303 (under appeal at the time of filing of the written submissions in this case). In that case the High Court judge had cited with approval a judgment of Murphy, J. in the High Court of Australia in Demirok v. The Queen [1977] 137 C.L.R. 20. In Demirok Murphy, J. stated:
The appellant also invokes American jurisprudence underlying the decision of Murphy, J. in the above case, and contends that that jurisprudence, on occasion, permits the double jeopardy clause to bar further prosecution – even after only one trial – in cases where “over-reaching prosecutorial misconduct” brings about a situation where the defence, in order to avoid putting the accused to the risk of being convicted, are compelled to seek a mistrial. In that regard, counsel, while not suggesting that there was any such prosecutorial misconduct in the present case, invokes, in particular, the opinion of Stevens, J., who concurred in the judgment, [but dissented on the reasoning,] in Oregon v. Kennedy, 456 U.S. 667 [1982], in stating as follows:
“The reasons why (the defendant’s valued right to have his trial completed by a particular tribunal merits constitutional protection are worthy of repetition. Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatised by an unresolved accusation of wrong doing, and may even enhance the risk that an innocent defendant may be convicted. The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed. Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial.”
The respondent contends that there is, in reality, no authority for the appellant’s submission, and that there is more than adequate case law to the contrary in this jurisdiction. The learned High Court judge properly found that there had been no vindication whatsoever of the public’s right to prosecute offences, whether by a first or second trial, and properly rejected the arguments advanced on behalf of the appellant.
Conclusion
It must first be said that it is a function of the respondent to determine whether or not, on the basis of the materials considered by him, a person should be charged with a particular offence. He may form the view that the offence is serious and that it is in the public interest that a person, such as the appellant, should be put on trial. The primary function of deciding either to commence or to continue with a prosecution is one conferred on him, and he is well aware of all relevant factors, including background facts, which may also affect his decision to proceed with a second or even a further trial, if a trial has been aborted for some valid reason.
As was stated uncontroversially by Denham, J. in her judgment in D.S. v. Judges of the Cork Circuit Court and The Director of Public Prosecutions [2008] 4 IR 379:
“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.”
Where a person has not been tried to conclusion, and has neither been acquitted or convicted, there is no provision in Irish law as to the number of times such a person may face trial, nor any legislative provision which prohibits any number of trials beyond a certain fixed number. The respondent’s decision to try or retry an accused is subject always, of course, to the courts prohibiting any trial or further trial in cases where it is established that the guarantee of a fair trial cannot be met in a particular case. This is implicit from the decision of Finlay, C.J., in Z v. Director of Public Prosecutions [1994] 2 I.R. 476.
The principles to be considered and applied, therefore, are those emanating from Irish case law, including PM v. Director of Public Prosecutions, supra., Devoy v. Director of Public Prosecutions, supra., D.S. v. Judges of the Cork Circuit Court and The Director of Public Prosecutions, supra., and others. These principles, on the facts of the present case, concern predominantly whether or not the appellant has established that it would be in breach of his constitutional right to a fair trial, or that it would in some way be otherwise unduly oppressive of him, having regard to stress and anxiety or to other relevant factors, to leave him open to the prospect of having to face a third trial, or to oblige him to undergo such a trial.
As to the facts surrounding this appeal, the first trial was aborted when the complainant, as the first witness, was interrupted in her evidence on the first day, and the second trial was halted when, because of a notation on certain photographs handed to the jury, the learned trial judge took the view it too should be aborted. In passing, it should be said that in the particular circumstances of that trial, this does not appear to have been absolutely necessary on the grounds stated. However, these conclusions proceed on the basis that both trials were properly aborted, within jurisdiction, well prior to the conclusion of the prosecution case. There is, as counsel accepts, no question that either trial was aborted for “prosecutorial misconduct”.
The learned High Court judge, in his judgment, correctly made a distinction, based on the existing case law, between those cases in which a trial may be prohibited where a trial has been completed, but for some reason, such as the failure to vindicate the right to a fair trial, a trial or trials have been declared unsatisfactory, and a case, such as this one, where a trial has never been completed because of some mishap during the course of the trial.
In his judgment the learned High Court judge approached the case on the basis of the existing Irish case law which he considered supported his finding that where a trial has not proceeded to its conclusion, there has been no vindication of the public’s right to prosecute, invoking in particular on the judgment of O’Neill, J., in the case of Michael McGrealy v. The Director of Public Prosecutions (Unreported, High Court, 28th November, 2007) in which the learned High Court judge stated:
“The applicant seeks to rely on the case of DS v. DPP (Unreported, High Court, O’Neill, J. 16th October, 2006). The applicant stresses various passages in that judgment and says that the inherent dangers for repetitive clauses referred to in that judgment apply here. I disagree with the applicant in such regard; the essence of the DS case is a balance of two competing rights. The right of the applicant not to be subjected to a trial, which is not in due course of law, and the right of the public to prosecute offences. The core principle is that the public have to have fair opportunity to prosecute a criminal case to its final conclusion. Mishaps can occur [which] may result in a retrial, for example, where a jury is discharged. Where the Director of Public Prosecutions in a case which has no mishap, which goes all the way on two occasions to a jury, the balance goes in favour of the applicant who may face risks. Here, unlike DS, the applicant faces similar offences, in relation to two other complainants. As of this point in time, the public’s right to prosecute has not been fully vindicated yet. Cases similar to DS are rare, where there are two jury disagreements after two satisfactory jury trials.”
The question which arises, therefore, is whether this Court should nevertheless come to the view, contrary to the above finding, that in a case where there has been no trial to conclusion an appellant is, by reason of that fact, entitled nevertheless to have an order of prohibition in respect of any future trial. The decision of the learned High Court judge did not depend on whether he agreed or disagreed with any proposed decision of the Director of Public Prosecutions to proceed with a further trial. The issue in this appeal is based on the appellant’s contention that the learned High Court judge was incorrect, in law, in finding that the appellant had failed to discharge the burden on him to establish that it would be a breach of his right to a fair trial, if a third trial were to take place, even where, contrary to the situation which arose in DS v. Judges of Cork Circuit Cork and The Director of Public Prosecutions, supra., the trial in the present case has never reached the stage where a jury has been charged, or asked to consider any verdict.
The appellant has not established any grounds supportive of his contention that any future trial could not be guaranteed to be a fair trial by reason of the fact that it is a third trial. That conclusion is not altered by the fact that in the United States, in a dissenting opinion on this point, one of the members of the United States Supreme Court has taken a different view. There is ample case law in this jurisdiction to support the view that where a trial has not concluded in the sense that a jury has not been charged nor been required to make any verdict, a third trial is not, a priori, to be prohibited. While I do not rely on it for my decision in this case, I note in passing that in a recent judgment of this Court in AP v. Director of Public Prosecutions [2011] IESC 2, a proposed fourth trial was not prohibited, on the mere basis that it was a fourth trial.
My conclusion that the learned trial judge did not err in law is not altered by the fact that there has also been excessive culpable delay, where, as here, the appellant has not established that the required balancing test should be determined in his favour. Whereas, it is undoubtedly the case that the public interest in prosecuting an accused does not always, or even, in general, automatically trump an accused’s entitlement to both a trial with expedition, and to a trial in due course of law, as is clear from the case law, and whereas courts must always properly protect or guard against any inherent dangers which might arise in the case of repeated trials, the intended prosecution of the appellant in the present case, even allowing for the fact that there has been culpable prosecutorial delay, and a lengthy period of time has since passed, does not constitute a breach of the appellant’s right to trial with expedition, or to a fair trial, merely because there were two earlier uncompleted trials. That is not to say but that in other, exceptional, circumstances, which do not arise in the present case, a successful argument might be made to the contrary. It is not necessary for this Court to speculate as to what circumstances might give rise to such a contrary view being accepted by the Court. I am satisfied, in the present case, that there are no grounds properly advanced, for concluding that an order of prohibition ought to have been granted by the learned High Court judge on this ground.
The Convention on Human Rights Ground
I now turn to the final major issue which was raised by the appellant in this appeal. The appellant invokes certain provisions of the Convention on Human Rights and Fundamental Freedoms, including Articles 6, 41 and 46. Insofar as Article 46 is concerned, that concerns the state’s obligation to implement of a final decision of the European Court of Human Rights. Clearly if a decision is made against a State, that State is obliged to implement the judgment. That is not in issue here. It is also the case that the jurisprudence of the European Court of Human Rights makes it clear that excessive, or inordinate, culpable delay of a certain type may infringe rights of an accused, such as the right to a hearing within a reasonable time, pursuant to Article 6 of the Convention. The appellant invokes several cases in support of his contention that the learned High Court judge ought to have granted an order of prohibition in support of the appellant’s right to a fair trial, pursuant to the Convention, in light of the culpable excessive delay found to have occurred in the present case.
Counsel on behalf of the respondent does not demur from the obligations found in the provisions of the Convention, but points to the fact that the European Court of Human Rights has not, in any of the cases invoked, or in any cases which concern the obligation on a State to provide or guarantee a trial with expedition, directed prohibition of a trial. Insofar as the appellant relies on decisions of the European Court of Human Rights on this basis, the arguments must also be considered in light of the findings of this Court in TH v. Director of Public Prosecutions [2006] 3 IR 520, that the vindication of rights pursuant to Article 6 of the Convention does not necessarily require the making of an order prohibiting a further trial.
Conclusion
It is sufficient for the purposes of the Convention to remark as follows.
The obligation on Irish courts to consider the case law and rulings of the European Court of Human Rights is clearly set out in law. Under s.2 of the European Convention on Human Rights Act, 2003 Courts in this jurisdiction are obliged to interpret and apply statutory provisions and rules of law, insofar as possible, subject to the rules of law relating to such interpretation and application, in a manner compatible with the State’s obligations under the provisions of the Convention. Section 4(A) of the Act requires courts to take judicial notice of judgments of the European Court of Human Rights. This Court will, therefore, interpret provisions of national law concerning the right to a fair trial, for example, in light of the appropriate articles of the Convention, having regard to relevant case law, and will generally apply the interpretation of the Convention adopted by the Court of Human Rights, this principle being subject only to the proviso that any such interpretation must not be inconsistent with the Constitution.
It is not possible to glean from the jurisprudence of the Court of Human Rights that prohibition necessarily follows in any, or all, cases where there has been excessive blameworthy prosecutorial delay. I am unaware of any case in which the court has found that the balancing test, which is prescribed to be carried out within Irish jurisprudence, is an inappropriate, or unsatisfactory, mechanism by which courts in this jurisdiction evaluate the rights of the parties. Nor is it evident from the case law that, in the event there has been found to be excessive culpable delay, the Court is not entitled, at least as a general rule, in assessing the respective rights, to have regard also to the right of the public to have serious offences prosecuted to conclusion.
I am not persuaded that the learned High Court judge misdirected himself in relation to this aspect of the matter. If he did so, it is a question of pure law as to whether he applied the correct principles, or not, a matter which can be cured by this Court. On the basis of the jurisprudence of the European Court of Human Rights, I am not satisfied that this establishes that the only effective remedy to be applied, in circumstances such as those in the present case, is the remedy of prohibition.
For all the foregoing reasons, I dismiss the appeal.
