DS v Judges of Cork Circuit Court and DPP

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 16 October 2006
• Neutral Citation: [2006] IEHC 303
• Court: High Court
• Docket Number: [2004
• Date: 16 October 2006

[2006] IEHC 303

THE HIGH COURT

[No. 906 JR/2004]

S (D) v JUDGES OF CORK CIRCUIT & DPP

JUDICIAL REVIEW

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D.S.

APPLICANT

AND

THE JUDGES OF THE CORK CIRCUIT AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

CONSTITUTION ART 38

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6

CONSTITUTION ART 38(1)

RSC O.84 r21

MCCORMACK, STATE v CURRAN 1987 ILRM 225

EVISTON v DPP 2002 3 IR 260

GREEN v US 1957 355 US 184

DEMIROK v QUEEN 19777 137 CLR 20

PEARCE v R 1998 HCA 57

O'LEARY v CUNNINGHAM 1998 IR 379

US v PEREZ 1824 9 WHEAT 579 1824 22 US 579

WADE v HUNTER 1949 336 US 684

R v HENWORTH 2001 2 CAR 47

AG v KELLY (NO 2) 1938 IR 109

RICHARDSON v US 1984 468 US 317

CHARLES v THE STATE 2000 1 WLR 384

FLOWERS v THE QUEEN 2000 1 WLR 2396

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

CRIMINAL LAW:

Double jeopardy

Disagreement of jury at two former trials - Whether third trial abuse of process -Whether third trial contrary to trial in due course of law - Attorney General v Kelly (No2) [1938] IR 109 distinguished; Green v United States (1957) 355 US 184 approved; Richardson v United States (1984) 468 US 317 and R v Henworth [2001] EWCA Crim120, [2001] 2 Cr App R 47 considered; Tibbs v Florida (1982) 457 US 31 approved -Constitution of Ireland, 1937, Article 38.1 -Injunction restraining further prosecution granted (2004/906JR - O'Neill J -16/10/2006) [2006] IEHC 303 S(D) v Judges of the Cork Circuit

- Quashing of verdict on appeal - Common law - Trial in due course of law - Article 38.1

Fact The applicant sought a permanent injunction restraining the respondent from prosecuting the applicant who had

already been tried twice for the same offence. The repeat trials had been the result of jury disagreement. The applicant

alleged that the prosecution was a violation of his right to a fair trial and that he could invoke the special plea of autrefois acquit or convict.

Held by O' Neill J., in allowing the relief claimed, that the third trial of a person for the same offence where in previous

trials the jury had disagreed would not be a trial in due course of law.

Reporter: E.F.

1 O'Neill J.delivered the 16th day of October, 2006.

2 This judgment is circulated in a redacted form to avoid identification of the parties

3 By his order of the 18 ^th October, 2004, McKechnie J. gave leave to the applicant to seek by way of judicial review a permanent injunction restraining the second named respondent from taking any further steps in the prosecution entitled The People (at the Suit of the Director of Public Prosecutions) v. D.S., pending before Cork Circuit Criminal Court. The grounds upon which that leave was given were set out in paragraph (E)1 to (E)5 inclusive and were in summary; that the further prosecution of the applicant who had already been tried twice for the same offence was a violation of the applicants right to a fair trial pursuant to Article 38 of the Constitution; that a retrial of the applicant violated the applicants right to a fair hearing pursuant to Article 6 of the European Convention on Human Rights: that a retrial of the applicant, he having been tried twice on the same offence was contrary to a long standing rule of practice, that a retrial of the applicant would be oppressive tothe applicant and an abuse of process; and that the applicants right to the expeditious institution of criminal proceedings had been violated.

4 The background to this matter is as follows.

5 The applicant was returned by the District Court to Cork Circuit Criminal Court for trial on 30 ^th October, 2002, in respect of charges of sexual assault allegedly perpetrated on one T.L. and S.L.. His trial in respect of these matters commenced on 6 ^th December, 2002, before his Honour Judge Patrick Moran. At the outset of the trial an application was made on behalf of the applicant to sever the indictment so that the charges in respect of each of the complainants would be tried separately. The learned Circuit Judge granted this application and on 6 ^th November, 2002, and the trial proceeded in respect of three counts on the indictment relating to charges of sexual assault on T.L.. On 8 ^th November, 2002, Counsel for the applicant applied to discharge the jury and despite objections by the prosecution the learned trial judge acceded to that application and discharged the jury.

6 A second trial in respect of eight charges relating to T.L. commenced on 6 ^th March, 2003, and the applicant was acquitted on the 12 ^th March, 2003, on all counts.

7 The trial in respect of the charges relating to S.L. commenced on the 3 ^rd July, 2003, and ended with a jury disagreement on the 4 ^th July, 2003. A retrial commenced on the 2 ^nd March, 2004, and on the 4 ^th March, 2004, the jury disagreed on counts 1 and 2 and acquitted the applicant on count no. 3. The applicant was remanded on bail to Cork Circuit Criminal Court on the 19 ^th October, 2004.

8 Leave to pursue the remedy sought herein by way of judicial review was sought and granted on the 18 ^th October, 2004.

9 The issue which primarily arises for consideration in this case is whether the applicant is entitled to have any further prosecution of him in respect of these chargesrestrained or prohibited on the grounds that a third trial following jury disagreements in the previous two, violates the ancient common law prohibition of double jeopardy and/or is an abuse of the process of the Court and in either case a third trial would not be a trial in due course of law as required by Article 38(1) of the Constitution.

10 The second named respondent has raised the issue of delay in initiating these proceedings as a preliminary issue and I should deal with that first.

11 Junior Counsel for the applicant who appeared for the applicant in the criminal proceedings in the Circuit Court, informed the court that when the criminal proceedings were adjourned after the second jury disagreement, it was not known whether or not the second named respondent would wish to proceed to a third trial, and the intention of the second named respondent to proceed to a third trial did not become known until some time close to the adjourned date.

12 Although it is not entirely clear, precisely when the applicants legal advisors were made aware of the intention of the second named respondent in that regard, I am satisfied that in all probability it was within a month of the application to this court for leave and hence I am satisfied that the applicant did move his application with reasonable promptness and within the time prescribed by Order 84 r. 21.

13 A second ground of opposition which should be dealt with at this stage is to the effect that the decision to proceed with the third trial on the part of the second named respondent is one which is not open to a judicial review unless there is evidence of mala fides or of an improper motive or improper policy. In this regard reliance is placed by the second named respondent on the case of the State (McCormack) v. Curran [1987] I.L.R.M. 225 and Eviston v. Director of Public Prosecutions [2002] 3 I.R. 260.

14 The decision of the second named respondent to initiate the prosecution in this case is not in issue in these proceedings nor is his decision to pursue a second trial after the first disagreement. The only issue for consideration is whether a third trial as mentioned earlier offends the prohibition on double jeopardy or is an abuse of process. Whether a third trial is impermissible on either of these grounds has little or nothing to do with the second named respondent's decision to initiate a prosecution in this case. Thus the kind of exploration of, or review of a decision to prosecute by the second named respondent as was out ruled in the above two cases does not arise here. In essence the challenge brought by the applicant in this case is to be viewed as similar to the many applications for prohibition that are brought in respect of prosecutions initiated by the second named respondent, on grounds, such as delay or abuse of process or oppression. Hence in my view this ground of opposition fails.

15 This brings me to the main issue in the case.

16 The applicant relies heavily on the following statement from Black J. giving the opinion of the United States Supreme Court in the case of Green v. United States 355 U.S. 184 [1957] where the learned judge says the following in respect of double jeopardy:-

"The underlying idea, one that is deeply ingrained in at least the Anglo American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offence, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty."

17 It is submitted that this opinion has direct application to the circumstances of this case and leads to a conclusion that a third trial would offend the double jeopardy principle.

18 The applicant also relies on the judgments of the High Court of Australia in the case of Demirok v. The Queen [1977] 137 C.L.R. 20 and also in the case of Pearce v. R. [1998] H.C.A. 57.

19 It was further submitted that a third trial in which there is no suggestion at this stage that the evidence would be any different to the previous two, would be an abuse of process and oppressive to the applicant and not a trial in due course of law as required by Article 38(1) of the Constitution. The applicant submitted that there was a convention or practise of long standing; that when, after two trials, a jury had failed to agree on a verdict, that the prosecution would not seek a further trial, and hence the second named...