QR v Director of Public Prosecutions

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Rory Mulcahy
• Judgment Date: 14 January 2025
• Neutral Citation: [2025] IEHC 10
• Docket Number: Record No.: 2024/46 JR

Between:

QR

Applicant

and

The Director of Public Prosecutions

Respondent

[2025] IEHC 10

Record No.: 2024/46 JR

THE HIGH COURT

Re-trial – Sexual assault – Judicial review – Applicant seeking to prohibit his re-trial – Whether there was a real risk of an unfair trial

Facts: The applicant, in October 2023, was acquitted on five of six counts on an indictment. Each count on the indictment related to acts which were alleged to have occurred as part of a single sequence of events. The jury were unable to reach agreement on the sixth count on the indictment. The respondent, the Director of Public Prosecutions, directed a re-trial on that single count, an allegation of sexual assault. In judicial review proceedings, the applicant sought to prohibit his re-trial on that single charge. He claimed that there was a real risk of an unfair trial should he be re-tried on that single count, which he contended would be a breach of his constitutional rights. He also argued that permitting a re-trial on the single remaining count would undermine the jury’s verdict on the other counts on the indictment. The respondent argued that there was nothing inherently unfair about ordering a re-trial where there had been a partial acquittal. She argued that the applicant had failed to discharge the burden of establishing on the balance of probabilities that any re-trial would be unfair. Moreover, she argued that the applicant had an adequate alternative remedy still available to him, an application to the trial judge in accordance with the principles in PO’C v DPP [2000] 3 IR 87. In the circumstances, she argued that the application should be refused.

Held by the Court that it was not persuaded that the hypothetical scenarios laid out by the applicant would inevitably breach the applicant’s constitutional right to a trial in due course of law. The Court held that the trial judge would be in a better position than the Court to determine, should the situation arise, whether any direction was necessary, and, if it was necessary, whether it would be sufficient to ensure a fair trial. It was apparent to the Court that for the original jury, acquittal on the other counts did not lead to an inevitable conclusion that there must be an acquittal on the remaining count; to permit a jury in a re-trial to consider that remaining count afresh was, therefore, entirely consistent with the original jury’s verdict and respected it. The Court held that prohibiting a re-trial, by contrast, would be, in effect, to re-write the decision of the jury on that count. The Court held that the applicant had not established that this was one of the exceptional cases in which it can be determined a priori that a trial will be unfair such that it is appropriate to prevent that trial taking place. The Court found that a re-trial would not inevitably be unfair, and the trial judge would have adequate tools to ensure a fair trial or to determine, in light of the conduct of the trial, whether a fair trial remained possible. Therefore, the Court held that the matter should proceed to re-trial, as directed by the respondent. The Court held that should any issue of alleged unfairness arise in the course of the trial, it was open to the applicant to make a PO’C application to the trial judge.

The Court refused the application for judicial review.

Application refused.

JUDGMENT of Mr Justice Rory Mulcahy delivered on 14 January 2025

Introduction

1 . In October 2023, the applicant was acquitted on five of six counts on an indictment. Each count on the indictment related to acts which were alleged to have occurred as part of a single sequence of events. The jury were unable to reach agreement on the sixth count on the indictment. The respondent has directed a re-trial on that single count, an allegation of sexual assault. In these judicial review proceedings, the applicant seeks to prohibit his re-trial on that single charge. He claims that there is a real risk of an unfair trial should he be re-tried on that single count, which he contends would be a breach of his constitutional rights. He also argues that permitting a re-trial on the single remaining count would undermine the jury's verdict on the other counts on the indictment.

2 . The respondent argues that there is nothing inherently unfair about ordering a re-trial where there has been a partial acquittal. She argues that the applicant has failed to discharge the burden of establishing on the balance of probabilities that any re-trial will be unfair. Moreover, she argues that the applicant has an adequate alternative remedy still available to him, an application to the trial judge in accordance with the principles in PO'C v DPP [2000] 3 IR 87. In the circumstances, she argues that this application should be refused.

3 . For the reasons set out in more detail below, I am satisfied that the applicant has not shown that any further trial will inevitably be unfair. Far from undermining the jury's verdict in the original trial, a re-trial on the single count on which the jury could not agree fully respects that decision. I am also satisfied that there remains available to the applicant an alternative, more appropriate remedy, an application to the trial judge, which he can pursue should it be considered appropriate in due course.

Background facts

4 . When granting leave to apply for judicial review, the court (Hyland J) made an order, on the applicant's application, restricting the publication of any matter tending to identify the applicant. The respondent does not oppose that order. In the circumstances, I have anonymised the title to the proceedings and propose setting out the background facts in an abbreviated way to avoid any risk of identification of either the applicant or the complainant.

5 . The applicant was tried in the Central Criminal Court on an indictment containing six counts, including three counts of rape contrary to common law, one count of rape contrary to section 4 of the Criminal Law (Rape)(Amendment) Act 1990 and two counts of sexual assault contrary to section 2(1) and 2(a)(i) of the Criminal Law (Rape) Amendment Act 1990. All counts on the indictment related to events which were alleged to have occurred on a particular date in 2020. In these proceedings, the parties were agreed that the main issues at trial were the question of consent and/or the lack of mens rea. In this regard, it is stated in the applicant's Statement of Grounds that it was never put to the complainant in evidence that the acts alleged in the indictment did not take place.

6 . It appears from the pleadings that all counts on the indictment relate to a single sequence of events alleged to have occurred between the applicant and the complainant in which a number of offences were alleged to have been committed by the applicant, resulting in the six counts on the indictment. Following a trial, the jury returned verdicts of not guilty on five of the counts but were unable to reach agreement in relation to the remaining count on the indictment. The applicant contends that the count on which the jury were unable to reach agreement, an allegation of sexual assault, is alleged to have occurred in the middle of the sequence of events, both before and after acts giving rise to counts on the indictment in respect of which he has been acquitted.

7 . Following the trial, the applicant was remanded on continuing bail pending a decision by the respondent regarding the remaining count on the indictment. On 6 November 2023, the court was informed that the respondent had directed a re-trial on the remaining count.

8 . The applicant sought and obtained leave to apply for judicial review on 24 January 2024. The respondent filed a Statement of Opposition on 1 August 2024. In her Statement of Opposition, the respondent pleads that she “ will not refer to [the] earlier trial in direct examination.”

9 . The application for judicial review was heard on 13 December 2024.

Arguments

10 . The applicant does not contend that re-trial following disagreement by the jury is inherently unfair. He accepts that the authorities support the proposition that a re-trial, even where there has been a partial acquittal, does not, in principle, breach the constitutional requirement for a fair trial. Rather, he argues that in the particular circumstances of this case, it is inevitable that any such re-trial would be unfair.

11 . He notes the respondent's commitment not to refer to the earlier trial but contends that it remains unclear whether she will lead evidence of the alleged facts grounding the earlier charges. If she does, he says that there is a risk that a jury would convict the applicant based on the evidence grounding the charges on which he has already been acquitted and that “ no directions of a trial judge” could prevent this. If, in the alternative, there is to be no reference to that evidence, he contends that the jury will inevitably be left with a “ partial, misleading and highly artificial account of what was essentially one continuing event”.

12 . He argues that he will face an “ extremely difficult dilemma” in deciding whether to refer to the other charges in any re-trial.

13 . He also contends that the respondent's decision to re-try him on the single remaining count is “ factually inconsistent” with respecting the first jury's verdict and that a conviction on the one remaining count would be logically inconsistent with the acquittal on the other counts. As explained in his submissions, he contends that a conviction on the remaining count would require a conclusion that it had been proved beyond reasonable doubt that the complainant had not consented to the conduct the subject of that count and that the accused knew or was reckless as to whether there was consent, notwithstanding the jury's apparent conclusion in the first trial that this had not been proved beyond reasonable...