A.P. v DPP

• Jurisdiction: Ireland
• Judge: Murray C.J.,Denham J.,Mr. Justice Hardiman,Mr. Justice Fennelly
• Judgment Date: 25 January 2011
• Neutral Citation: [2011] IESC 2
• Date: 25 January 2011
• Court: Supreme Court
• Docket Number: [S.C.

P (A) v DPP

BETWEEN

A.P.

APPLICANT / APPELLANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

-AND-

THE JUDGES OF THE CIRCUIT COURT

RESPONDENT

[2011] IESC 2

Murray C.J.

Denham J.

Hardiman J.

Fennelly J.

Finnegan J.

203/2009

204/2009

THE SUPREME COURT

CRIMINAL LAW

Multiple trials

Sexual offences - Discharge of juries - Inadmissible and prejudicial evidence given by complainant - Whether fourth trial per se prohibited - Whether fourth trial abuse of process - Whether fourth trial breach of right to fair trial -- Role of Director of Public Prosecutions - DS v Judges of the Cork Circuit Court [2008] IESC 37, [2008] 4 IR 379 and McNulty v Director of Public Prosecutions [2009] IESC 12, [2009] 3 IR 572 considered - Constitution of Ireland 1937, Articles 38.1 and 40.4.1 - Applicant's appeal dismissed (203 & 204/2004 - SC - 25/1/2011) [2011] IESC 2

P(A) v Director of Public Prosecutions

Facts: The Appellant was charged with fourteen counts of indecent assault against the complainant which were alleged to have occurred between 1974 and 1978. A complaint was not made to the Gardaí until more than 20 years after the occurrence of the last alleged offences. A criminal investigation followed, resulting in the Appellant being charged. At trial, the Appellant pleaded not guilty and was duly arraigned. On each occasion the learned trial Judge discharged the jury, due to evidence which was considered inadmissible and prejudicial to the Appellant. The Director of Public Prosecutions put the Appellant on a fourth trial, however the complainant put forward a medical certificate and the trial was adjourned. Thereafter, the Appellant sought by Judicial Review prohibition of a fourth trial on the basis that it would amount to an abuse of process or a breach of his constitutional rights. The Respondent lodged a Statement of Opposition and the Appellant filed a Replying Affidavit in which he complained delay and that he was subject to a threat by letter from the complainant to proceed with a criminal charge.

Mr. Justice Hardiman held although the issue of delay and the letter was raised by the Appellant"s Solicitor in his affidavit, neither question was reflected in the grounds on which leave to seek Judicial Review was sought. Mr. Justice Hardiman stressed the importance of the necessity for precise defining of the grounds on which relief is sought until the case is actually before the Court and further held that delay in the case and the anxiety to the Defendant was not relied upon at all in the grounds. Mr. Justice Hardiman stated the concept of a fourth trial on the same charges as those that were the subject of previous proceedings was a matter of grave concern to him and that the Court must proceed on the basis that the learned trial Judge"s decision to discharge the jury was the correct decision.

Held by Mr. Justice Hardiman he did not agree that the complainant"s evidence could have been admissible and that the circumstances that could justify a fourth trial were extremely rare and must be fully established and explained by the Director. Mr. Justice Hardiman referred to the Book of Evidence which was exhibited before the Court and of which contained allegations by Gardaí that the Appellant made significant admissions when interviewed by them. Mr. Justice Hardiman further held that the Court was not engaged in a criminal trial of the Appellant but that of a civil proceeding in which the Appellant asserted it would be an abuse of process to put him on trial again and that there was a real risk such a trial would be unfair. Mr. Justice Hardiman submitted the presence of the alleged admissions was not irrelevant to the question of fairness and that the Appellant had not engaged with the allegation of the admissions in the pleadings or affidavits and that the onus was on him to do so.

Held: Appeal dismissed

S (D) v JUDGES OF CORK CIRCUIT COURT & DPP 2008 4 IR 379

G (M) v DPP 2002 2 IR 738

CONSTITUTION ART 38.1

CONSTITUTION ART 40.4.1

CRIMINAL LAW (AMDT) ACT 1935 S6

CRIMINAL LAW (RAPE)(AMDT) ACT 1990

H v DPP 2006 3 IR 575

Z v DPP 1994 2 IR 476

MCNULTY v DPP 2009 3 IR 572

1 JUDGMENT of Murray C.J. delivered on the 25th day of January 2011

2 Judgment delivered by Denham J. (Murray C.J., Hardiman J., Finnegan J. concur.), Fennelly J. (Murray C.J., Hardiman J. Finnegan J. concur.), Murray C.J. & Hardiman J.

3 I have had the advantage of reading the judgments of Denham J. and Fennelly J. I agree with those judgments and the orders which they propose. In agreeing with those judgments which address all the issues arising for decision in this appeal I express no view on any other matter referred to in the course of the appeal. There is a procedural aspect to this appeal on which I propose to make some brief observations.

4 In the course of her judgment Denham J. refers to the scope of the Court's jurisdiction in judicial review proceedings as being confined to the grounds specified in the order granting leave to bring judicial review proceedings, or any additional grounds arising from an amendment to that order.

5 Because there has been a not insignificant number of appeals in which there was a lack of clarity and even confusion as to the precise issues which were before the High Court I propose to make a number of observations in that regard.

6 Judicial review constitutes a significant proportion of the cases which come before the High Court and before this Court on appeal. A party seeking relief by way of judicial review is required to apply to the High Court for leave to bring those proceedings and can only be granted such leave on specified grounds when certain criteria, required by law, are met. In most cases the applicant must demonstrate that he or she has an arguable case in respect of any particular ground for relief and there are also statutory provisions setting a somewhat higher threshold for certain specified classes of cases.

7 In the interests of the good administration of justice it is essential that a party applying for relief by way of judicial review set out clearly and precisely each and every ground upon which such relief is sought. The same applies to the various reliefs sought.

8 It is not uncommon in many such applications that some grounds, and in particular the ultimate ground, upon which leave is sought are expressed in the most general terms as to the alleged frailties of the decision or other act being impugned, rather in the nature of a rolled up plea, and alluding generally to want of legality, fairness or constitutionality. This can prove to be quite an unsatisfactory basis on which to seek leave or for leave to be granted particularly when such a ground is invariably accompanied by a list of more specific grounds.

9 Moreover, if, in the course of the hearing of an application for leave it emerges that a ground or relief sought can or ought to be stated with greater clarity and precision then it is desirable that the order of the High Court granting leave, if leave is granted, specify the ground or relief in such terms.

10 There has also been a tendency in some cases, at a hearing of the judicial review proceedings on the merits, for new arguments to emerge in those of the applicant which in reality either go well beyond the scope of a particular ground or grounds upon which the leave was granted or simply raise new grounds.

11 The court of trial of course may, in the particular circumstances of the case, permit these matters to be argued, especially if the respondents consent, but in those circumstances the applicant should seek an order permitting any extended or new ground to be argued. This would avoid ambiguity if not confusion in an appeal as to the grounds that were before the High Court. The respondents, if they object to any matter being argued at such a hearing because it goes beyond the scope of the grounds on which leave was granted, should raise the matter and make their objection clear. Although it did not arise in this particular case, it is also unsatisfactory for objections of this nature to be raised by the respondents at the appeal stage when no objection had been expressly raised at the trial or there is controversy as to whether this was the case.

12 In short it is incumbent on the parties to judicial review to assist the High Court, and consequentially this Court on appeal, by ensuring that grounds for judicial review are stated clearly and precisely and that any additional grounds, subsequent to leave being granted, are raised only after an appropriate order has been applied for and obtained.

13 Judgment delivered on the 25th day of January, 2011 by Denham J.

14 1. This case raises a net issue. It was submitted that a fourth trial per se of the applicant would be an abuse of process, a breach of the applicant's right to a fair trial in the due course of law.

15 2. A.P., the applicant/appellant, referred to as "the applicant", has been charged with fourteen counts of indecently assaulting L., a female. He was returned for trial to Waterford Circuit Criminal Court sitting in Waterford on the 18 ^th May, 2004. The matter was adjourned on a number of occasions. A trial commenced on three separate occasions, but on each occasion was not advanced beyond the first witness, the complainant, before the trial judge ordered that the jury be discharged. Because of the formulation of the ground upon which judicial review was sought, it is not necessary to analyse the basis for the three previous orders discharging the jury. Indeed, it would not be possible to undertake such an analysis as the transcripts of the three previous occasions, when the trial commenced, were not before the Court.

16 3. The relevant dates in this...