D. v DPP

CourtSupreme Court
Judgment Date01 Jan 1994
Docket Number[S.C. No. 76 of 1993]

Supreme Court

[S.C. No. 76 of 1993]
D.v. Director of Public Prosecutions
The Director of Public Prosecutions

Case mentioned in this report:—

Finucane v. McMahonIRDLRM [1990] 1 I.R. 165; [1990] I.L.R.M. 505.

Constitution - Right to fair trial - Accused alleging prejudice to right to fair trial by publication of newspaper article - Onus on accused alleging such prejudice - Whether real or serious risk of unfair trial established - Constitution of Ireland, 1937, Article 38, s. 1 and Article 40, section 3.

Judicial review.

The facts are summarised in the headnote and fully set out in the judgment of Egan J., infra.

On the 22nd October, 1992, the applicant was given leave by the High Court (Lardner J.) to apply for an order of prohibition in respect of the respondent's decision to proceed with the applicant's trial scheduled for January, 1993. The application was heard by the High Court (Carney J.) on the 30th January, 1993, and an order of prohibition restraining the respondent from further prosecuting the applicant on a charge of indecent assault granted on the 5th February, 1993.

Notice of appeal was filed on the 15th March, 1993.

The appeal was heard by the Supreme Court (Finlay C.J., O'Flaherty, Egan, Blayney and Denham JJ.) on the 8th July, 1993.

The applicant twice stood trial on a charge of indecent assault on a date unknown on a boat off the coast of Donegal. On both occasions the jury had been discharged, and the applicant's retrial ordered. At the first trial he had been found not guilty of ten other charges by direction of the trial judge.

Shortly after the discharge of the jury in the second trial, on the grounds of prejudicial newspaper reporting of the trial, a lengthy interview with the complainant was published on the front and inside pages of a national Sunday newspaper. The article was headed "Rape: it began when I was 11", and underneath "Girl tells of her five year ordeal of assaults, pregnancy, a child - and suspended sentences for three men". In the article, the complainant contended that she had been assaulted in six different locations, none of which were named but one of which bore a similarity to that referred to in the remaining indictment against the applicant. Neither the complainant nor the applicant was named in the article. The history of the criminal proceedings to date was given, including the fact that seven men had been charged; three acquitted; three given suspended sentences; the trial of the seventh "halted this week" after prejudicial newspaper coverage; and that the seventh man had originally faced ten charges. The complainant was quoted as saying "I kept thinking I wish I was dead".

The second trial had been halted in July, 1992. The retrial was scheduled for January, 1993. The applicant obtained an order of prohibition in the High Court, preventing the respondent from proceeding with the trial. On appeal by the respondent it was

Held by the Supreme Court (O'Flaherty, Blayney and Denham JJ., Finlay C.J. and Egan J. dissenting), in allowing the appeal, 1, (Finlay C.J. and Egan J. concurring) that the right to a fair trial was of fundamental importance, and that where the unfairness suggested consisted of an undisclosed influence on the mind of a potential juror in regard to the question of guilt or innocence, which of its nature could not be corrected on appeal, the test was whether a real or serious risk of an unfair trial had been established.

Finucane v. McMahonIR [1990] 1 I.R. 165 considered.

2. That the unenumerated rights under Article 40, s. 3 incorporated a right to fairness of procedures, which incorporated the requirement of a trial by a jury unprejudiced by pre-trial publicity; and that on a hierarchy of constitutional rights the applicant's right to a fair trial - including the right to a trial by a jury unprejudiced by pre-trial publicity - was superior to the community's rights to have a crime prosecuted.

3. That while it was possible that one or more members of the jury would associate the article with the applicant and feel sympathy for the complainant, it had not been established that there was a real or serious risk that the jury would disregard their oath to give a true verdict on the evidence, or ignore the charge of the trial judge.

(Per Denham J.): That the foregoing conclusion did not limit in any way the trial judge's role in ensuring fair procedures.

(Per Finlay C.J. and Egan J., dissenting): That the article would have had a harrowing effect on anyone who read it, and was calculated to arouse great sympathy for the complainant and antagonism towards anyone accused of assaulting her; that it contained a good deal of matter that was irrelevant and inadmissible, including the fact that the applicant had originally faced ten charges; that there was a very serious risk that any jurors who had read the article would not be able to put it out of their minds in spite of the charge from the trial judge to confine themselves to the evidence; and that with regard to the argument that the risk would abate with the passage of time, the proper time to be considered was January, 1993, the time scheduled for the new trial before judicial review was sought.

(Per Finlay C.J.): That while it was clear that in the interests of justice much greater vigilance should be exercised by newspapers in the type of publicity given to crimes in which trials were still pending, it was not to be taken that every criminal trial in respect of an offence which had received significant publicity would by that fact become unfair.

Cur. adv. vult.

Finlay C.J.

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