DS v Judges of Cork Circuit Court and DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns,Denham J.
• Judgment Date: 10 June 2008
• Neutral Citation: [2008] IESC 37
• Date: 10 June 2008
• Court: Supreme Court
• Docket Number: [S.C.

S (D) v Judges of Cork Circuit Court & DPP

Between/

D.S.

Applicant/Respondent

and

The Judges of the Cork Circuit Court and The Director of Public Prosecutions

Respondents/Appellants

[2008] IESC 37

Denham J.

Hardiman J.

Fennelly J.

Kearns J.

Finnegan J.

[S.C. No: 417 of 2006]

THE SUPREME COURT

CRIMINAL LAW

Double Jeopardy

Multiple trials -Autrefois acquit - Failure to reach verdict - Severance of indictment - Whether third trial permissible where jury has previously failed to agree - Whether principle of double jeopardy applies where jury has failed to reach verdict - Whether third trial contrary to trial in due course of law - Whether public interest served after two trials - Whether severance of indictment relevant to issue of multiple trials - Registrar of Companies v Anderson [2005] 1 IR 21 applied; AG v Kelly (No 2) [1938] IR 109, Z v DPP [1994] 2 IR 476, State (McCormack) v Curran [1987] ILRM 225 and R v Henworth [2001] EWCA Crim 120, [2001] 2 Cr App R 47 considered - Courts of Justice Act 1928 (No 15), ss 5(1)(b) and 5(2)(b) - Criminal Procedure Act 1993 (No 40), s 4 - Constitution of Ireland 1937, art 38.1 - European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, article 6 - Prosecutor's appeal dismissed (417/2006 - SC - 10/6/2008) [2008] IESC 37

S(D) v Judges of the Cork Circuit

CONSTITUTION ART 38.1

REGISTRAR OF COMPANIES v ANDERSON & SYSTEM PARTNERS LTD 2005 1 IR 21 2004/44/10033

DPP, PEOPLE v QUILLIGAN 1989 IR 46

Z v DPP 1994 2 IR 476

MCCORMACK, STATE v CURRAN 1987 ILRM 225

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

CONSTITUTION 5TH AMDT (US)

GREEN v UNITED STATES 1957 355 US 184

UNITED STATES v PEREZ 1824 22 US (9 WHEAT) 579

BURKS v UNITED STATES 1977 437 US 1

RICHARDSON v UNITED STATES 1984 468 US 317

BALL v UNITED STATES 1896 163 US 662

WILLIAMS v THE STATE OF GEORGIA 1988 258 GA 305 369 SE2D 232

BERENDT MIDNIGHT IN THE GARDEN OF GOOD & EVIL 1994

UNITED STATES v GUNTER 1976 10TH CIRCUIT 546 F2D 861

MORRISON BLACKTONE'S COMMENTARIES ON THE LAWS OF ENGLAND VOL 3 2001 295

CRIMINAL JUSTICE ACT 1967 S13

COHEN RETRIAL AFTER A HUNG JURY 1983 12(3) ANGLO-AMERICAN LAW REVIEW 174

R v HENWORTH 2001 2 CAR 47

CHARLES & ORS v STATE 2000 1 WLR 384

AG v KELLY (NO 2) 1938 IR 109

COURTS OF JUSTICE ACT 1928 S5(1)(b)

COURTS OF JUSTICE ACT 1928 S5(2)

COURTS OF JUSTICE ACT 1928 S5

KEPNER v UNITED STATES 1904 195 US 1000

CRIMINAL PROCEDURE ACT 1993 S4

STATE v MCMULLEN 1925 2 IR 9

MCCORMACK, STATE v CURRAN 1987 ILRM 225

EVISTON v DPP 2002 3 IR 260 2002 1 ILRM 134

CRIMINAL PROCEDURE ACT 1967

1 1. At issue in this appeal is the principle of double jeopardy. Also, at issue is whether a trial should proceed for a third time, or whether it should be prohibited, where charges have twice previously been before a jury which each time failed to convict or acquit. For the reasons I set out below I am satisfied that the principle of double jeopardy does not apply in this case. However, as I explain in my judgment, I would prohibit a third trial, in all the circumstances of the case. Consequently I would dismiss the appeal.

2 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 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 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 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 6. The applicant has sought to injunct a third trial on counts no. 1 and no. 2, relating to S.L.

7 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 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.

3 That a retrial of the applicant on the charges to which he had already been tried on two previous occasions is contrary to a rule of practice of long standing.

4 That a retrial of the applicant on the charges to which he had already been tried on two previous occasions is oppressive to the applicant and isan abuse of process.

5 That the applicant's right to the expeditious institution of criminal proceedings has been violated.

9 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 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 kilteredsimply 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...