D.S. -v- Judges of The Circuit Court & anor, [2008] IESC 37 (2008)

Docket Number:417/06
Party Name:D.S., Judges of The Circuit Court & anor
Judge:Kearns J.
 
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THE SUPREME COURTJUDICIAL REVIEW Denham J.Hardiman J.Geoghegan J.Fennelly J.Kearns J.[Record No. S.C. 417/06]BETWEEN D.S. APPLICANTANDTHE JUDGES OF THE CORK CIRCUITANDTHE DIRECTOR OF PUBLIC PROSECUTIONSRESPONDENTS/APPELLANTSJUDGMENT of Mr. Justice Kearns delivered the 10th day of June, 2008 The applicant in this case is a married man and father of three children who lives in a rural part of Ireland. He was charged in 2001 on a single indictment containing six counts of sexual assault, three involving the complainant, TL, and three involving her cousin, SL. TL was born in 1980 and the offences involving her are alleged to have occurred in 1993. The applicant is the husband of TL's aunt and TL did babysitting work for the two children of the applicant and his wife at that time. TL alleges that on occasions when she slept over in the applicant's house he would come into the bedroom where she shared a bed with his children and would interfere with her under the bedclothes. He would touch her in the vaginal area and insert his fingers into her. This is said to have happened a number of times. SL was born in 1982 and the offences involving her are said to have occurred between 1994 and 1997. She also performed babysitting duties and made similar accusations to those made by TL. Both complainants came forward in 2001. The matter was first listed before the local Circuit Court judge on 30th October, 2002. The applicant successfully applied on 6th November, 2002 for separate trials in respect of each complainant. The first trial in the local Circuit Court commenced on 7th November, 2002, but on the following day the jury was discharged because defence counsel had confused certain factual matters in relation to the first complainant with particulars which related to the other complainant. The retrial of the applicant in relation to the first complainant took place in March, 2003 and resulted in a not guilty verdict from the jury in respect of all counts.The trial in respect of SL commenced on 3rd July, 2003 and on 4th July, 2003 the jury disagreed on all counts. A retrial followed in March, 2004 when the jury returned a not guilty verdict on count 3 and disagreed in respect of counts 1 and 2.As the second named respondent proposed to put the applicant on trial for a third time in respect of counts 1 and 2 in relation to SL, the applicant brought judicial review proceedings seeking an order of prohibition by way of a permanent injunction restraining the second named respondent from taking any further steps to retry the applicant. The grounds upon which relief was sought may be summarised as follows:-(a) The decision of the second named respondent to retry the applicant when he had previously been tried twice in respect of the same offence was a violation of the applicant's right to a fair trial pursuant to Article 38 of the Constitution.(b) A retrial of the applicant would violate the applicant's right to a fair hearing pursuant to Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms as adopted in this jurisdiction by the European Convention on Human Rights Act 2003.(c) A retrial of the applicant on the charges in respect of which he had already been tried on two previous occasions was contrary to a rule of practice of long standing.(d) A retrial of the applicant on the charges in respect of which he had already been tried on two previous occasions was oppressive to the applicant and amounted to an abuse of process.In an affidavit sworn on behalf of the applicant by Joseph Cuddigan, his solicitor, the deponent states that the continual retrials of the applicant have caused great hardship to him and to his family. The applicant is a married man with three children, the eldest of whom recently completed secondary education. This daughter is alleged to have performed poorly in her Leaving Certificate examination as a result of the stress engendered as a result of the ongoing trials. Further, the deponent states that the applicant's wife became anxious and depressed and was obliged to take anti-depressant drugs. It is further stated that the applicant's domestic and social life suffered greatly as a result of the ongoing trial processes, to such a degree that in September, 2004, the applicant attended a consultant psychiatrist who diagnosed that both the applicant and his family were suffering from extreme stress as a result of the ongoing court proceedings. A medical report from Dr. Jane O'Neill, dated 5th July, 2004, which outlined the effects of the stress on the applicant's children, was also exhibited in the affidavit.Leave to bring judicial review proceedings was granted by order of the High Court (McKechnie J.) on 18th October, 2004. A statement of opposition was filed in January, 2005. The main grounds of opposition may be summarised as follows:-(a) The decision of the second named respondent to try or retry the applicant is not, save in the most exceptional and limited circumstances, susceptible to relief by way of judicial review.(b) It is denied that the decision of the second respondent to retry the applicant is either a violation of the applicant's right to a fair trial pursuant to Article 38 of the Constitution, or his right to a fair hearing pursuant to Article 6 of the European Convention.(c) It is further denied that any such retrial would be contrary to a rule of practice of long standing; alternatively, if there is such a rule of practice, it is denied that any such rule precludes the second respondent from exercising his statutory prosecutorial function.(d) It is further denied that a retrial would be oppressive to the applicant or an abuse of process or that the applicant is entitled to the relief he claimed or to any relief.JUDGMENT OF THE HIGH COURTThe High Court (O'Neill J.) by judgment and order delivered on 16th October, 2006 restrained the second named respondent from taking any further steps to prosecute or retry the applicant. O'Neill J. invoked the principle of double jeopardy to hold that the correct balance between protecting the public right to a full and fair opportunity to prosecute to a verdict by a jury while at the same time guarding against the inherent dangers of repeated trials was correctly achieved by limiting the number of trials which might be had, and which end in jury disagreement, to two trials. He further held, where two juries in separate trials failed to reach a verdict because they disagreed, that the public interest had been adequately protected and that a third trial of a person for the same offence would not be a trial in due course of law as required by Article 38.1 of the Constitution. The learned trial judge found that, beyond two such trials, the risk of an innocent person being convicted became "unacceptable". The risk, as he saw it, arose from:-(a) The potential for the "adjustment of evidence" where it was seen to have been inadequate in the previous trials, and(b) The potential prejudicial notoriety that would inevitably be attached to an accused person the more often he is tried for the same offence.He found that this latter factor had greater weight in the instant case because all of the potential witnesses came from the same rural area and the trial was scheduled to take place locally. The learned trial judge also took into account the fact that the applicant had previously been tried twice in respect of similar allegations made by a different complainant, TL, characterising the proposed retrial as a "fifth trial".He concluded :- "I have come to the conclusion therefore that the ancient common law prohibition on multiple trials known as the double jeopardy principle has application to this case, although it might more aptly be described as the triple jeopardy principle.It follows that a third trial of a person for the same offence where in the two previous trials the jury had disagreed would not in my opinion be a trial in due course of law as required by Article 38(1) of the Constitution."RELEVANT LEGAL PRINCIPLESIn reaching his conclusion in this matter, the learned High Court judge derived what he described as "assistance and enlightenment" from the American jurisprudence on the topic of double jeopardy. He identified two strands of thought from decisions of the U.S. Supreme Court on the issue:- "Firstly a clear sense of the dangers involved in putting a person on trial for the same offence repeatedly and secondly a strong sense of the public right to have a full and fair opportunity to prosecute a person in respect of an alleged crime all the way to a verdict from a jury." He described how no case had been opened to him from the United States in which there had been consideration of the problem posed by a third trial for the same offence. He took the view that the overall philosophy evident from his review of the cases was one which leans against multiple trials for the same offence, subject to an exception that where the first trial was aborted as a matter of "necessity" the public should not thereby be deprived of their full and fair opportunity to have a case prosecuted to verdict by a jury.Position in the United StatesHaving regard to the importance attached by the learned trial judge to American jurisprudence on the issue of double jeopardy, a brief consideration of the law in that jurisdiction is appropriate. Any such consideration must commence with the 5th Amendment to the U.S. Constitution which provides:- "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb". As Justice Black pointed out in Green v United States, 355 U.S. 184, 187 (1957):-"The constitutional prohibition against 'double jeopardy' was designed...

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