S. O'B. v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 05 March 2020
• Neutral Citation: [2020] IEHC 165
• Docket Number: [2018 No. 1037 JR]
• Court: High Court
• Date: 05 March 2020

BETWEEN

S. O'B.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

[2020] IEHC 165

Richard Humphreys J.

[2018 No. 1037 JR]

THE HIGH COURT

JUDICIAL REVIEW

Retrial – Sexual assault – Judicial review – Applicant seeking to stop his retrial – Whether the prosecution reconfiguring its case was unconstitutional

Facts: The applicant was accused of sexual assault on a grandchild. After a first trial in which there was a partial acquittal and a disagreement, he unsuccessfully applied to the trial judge to stop his retrial. He applied to the High Court seeking an equivalent order by way of judicial review. In an amended statement of grounds, two primary reliefs were sought. Firstly, an order requiring the respondent, the DPP, to give reasons for the decision to prosecute the applicant on grounds 1 to 3 (relief 3). That aspect was abandoned by Mr Devally for the applicant. Secondly, an injunction restraining the DPP from proceeding with the new trial (relief 1). A declaration was also sought (relief 4), but as such a declaration was unnecessary if the injunction was granted and inappropriate if it was refused, the claim for declaration did not really add anything. Interlocutory relief was also sought by way of a stay pending the determination of proceedings (relief 2), but that had already been granted. Two major aspects of potential unfairness were stressed by Mr Devally: (i) that the prosecution would be reconfiguring its case significantly; and (ii) that the accused would be placed in an impossible dilemma in terms of whether to refer to the previous acquittal or not, or to put the matter alternatively, that the previous acquittal and the fact that the complainant’s wider allegations were not upheld, would be taken out of the case unless the defence were to put itself in a difficult (if not impossible) position by reintroducing that item.

Held by the Court that, at the outset, it would make an order restricting publication of matter tending to identify the applicant, because in the circumstances of this case that would tend to identify the complainant. As regards the prosecution reconfiguring its case, the Court held that this is inevitable in the context of any retrial following a partial acquittal. The Court held that this procedure is not in itself unconstitutional and was not so in this case. The Court held that decisions about what line to take are often far from clear-cut and may be very painful, especially in retrospect, but that in itself does not automatically amount to unconstitutional unfairness. The Court held that it was true that the defence in the case of a retrial following a partial acquittal had a difficulty that it did not have before; but then so did the prosecution as it would have to keep the complainant on track in referring only to the three incidents concerned when giving her evidence, or at least her evidence in chief. The Court held that, while the application was being dismissed on the merits, even if it was wrong about the substantive legal issues involved, it would have refused relief on the grounds of there being an alternative remedy, because any potential unfairness could be cured within the ordinary criminal process.

The Court held that the application would be dismissed and that the stay on the criminal proceedings would be discharged.

Application dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 5th day of March, 2020

1 A general issue arises in any retrial following a partial acquittal. If an accused is tried on counts A and B, and is acquitted of A, but the jury disagrees on B, there are at least two possible complications when that accused comes to be retried on count B:

(i). firstly, the defence will have to deal with the question of whether the jury should be told of the acquittal on count A; and

(ii). secondly, there is the fact that some reconfiguration of the prosecution case is inevitable in order to drop those parts of it that refer to count A.

2 Seeing as the Supreme Court has so definitively endorsed the procedure of retrial and indeed in serious cases a possible second retrial ( Byrne v. Judges of the Dublin Circuit Court [2015] IESC 105, [2015] 2 JIC 1704 (Unreported, Supreme Court, 17th February, 2015)), it follows that any inevitable concomitants of such procedures, such as the reconfiguration of the prosecution case or the dilemma as to whether the jury should be told of the outcome of the first trial, are not in themselves unconstitutionally unfair.

Facts

3 The applicant was born in 1940 and is now 79. He is accused of sexual assault on a grandchild. The complainant was fifteen at the time of the incidents alleged. After a first trial in which there was a partial acquittal and a disagreement, he unsuccessfully applied to the trial judge to stop his retrial. He now seeks an equivalent order by way of judicial review.

4 The complainant's mother (who is the applicant's daughter) also complained that the applicant had sexually, emotionally and physically assaulted her, referring to incidents from age eight onwards. She did not make a formal complaint and the applicant claims that the mother had also loosely made such complaints against others, but had not followed up those matters with formal complaints either.

5 The context for the alleged offences was that the applicant's daughter and granddaughter moved into the applicant's house in July 2015. A complaint of sexual assault was made to the Garda Síochána in February 2016. The applicant was charged and in due course was returned for trial on 24th November, 2016 on seven counts of sexual assault against his granddaughter on various dates between 1st July, 2015 and 9th February, 2016.

6 The first three counts referred to specific incidents which the complainant particularly remembered and the latter four counts were general counts which were, in effect, representative of alleged ongoing abuse by the applicant over a period of time. There is no exact or rigid methodology for distilling offending over a period of time down to a net number of counts on an indictment. That ultimately is a matter for a prosecutorial judgment and discretion; and in that regard a balance between oppression of an accused, practicality, manageability with a jury and doing justice for the complainant, all come into the mix.

7 At the end of the first trial on 24th January, 2018, the jury returned a verdict of not guilty on the general counts numbered 4 to 7, and disagreed on the specific counts.

8 The D.P.P. now seeks to retry the applicant on counts 1 to 3. There is no intention to add any further counts. A second jury was empanelled over the course of 4th to 5th December, 2018 and legal argument relating to alleged prejudice to the applicant took place in an endeavour to stop the trial. His Honour Judge Keenan Johnson refused the application and adjourned matters until 18th December, 2018 to allow the second trial to begin.

9 It is not totally clear on the papers why the retrial did not commence immediately following the ruling refusing to stop it, but I am told that was due to the management of the sittings more than anything else. However, that adjournment did provide a window during which the applicant had the opportunity to seek judicial review and indeed that is what he did, applying for and being granted leave to seek judicial review on 10th December, 2018. In making that order Noonan J. also granted a stay on the criminal proceedings.

10 There was then a further order of 13th December, 2018 giving liberty to file an amended...