Z v DPP

JurisdictionIreland
CourtSupreme Court
JudgeFinlay C.J.
Judgment Date16 March 1994
Neutral Citation1994 WJSC-SC 1980
Docket Number[Bill No. 22/93]
Date16 March 1994
Z v. DPP
JUDICIAL REVIEW

BETWEEN:

"Z"
Applicant/Appellant
.v.
THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent

1994 WJSC-SC 1980

FINLAY C.J.

O'FLAHERTY J.

EGAN J.

BLAYNEY J.

DENHAM J.

385/93

THE SUPREME COURT

Synopsis:

CONSTITUTION

Personal rights

Fair procedures - Offence - Trial - Accused - Prejudice - Sexual assault - Extensive pre-trial publicity - Whether fair trial possible - Essential condition being adequate directions to jury by trial judge - (385/93 - Supreme Court - 16/3/94) [1994] 2 ILRM 497

|Z. v. Director of Public Prosecutions|

CRIMINAL LAW

Offence

Prosecution - Restraint - Grounds - Publicity - Accused - Prejudice - Saturation coverage of offence by newspapers, radio and television - Fair trial alleged to be impossible - Constitution of Ireland, 1937, Articles 38, 40 - (385/93 - Supreme Court - 16/3/94) - [1994] 2 ILRM 497

|Z. v. Director of Public Prosecutions|

JURY

Competence

Duty - Facts - Disregard - Publicity - Accused - Prejudice - Fair trial - Trial judge - Necessity for judge to direct jury to ignore extensive pre-trial publicity adverse to accused - Presumption that jury would comply with directions and act in accordance with their oaths - (385/93 - Supreme Court - 16/3/94)

|Z. v. Director of Public Prosecutions|

NATURAL JUSTICE

Fair procedures

Offence - Trial - Publicity - Accused - Prejudice - Fair trial - Trial judge - Necessity for judge to direct jury to ignore extensive pre-trial publicity adverse to accused - Presumption that jury would comply with directions and act in accordance with their oaths - (385/93 - Supreme Court - 16/3/94) [1994] 2 ILRM 497

|Z. v. Director of Public Prosecutions|

Citations:

CRIMINAL LAW (AMDT) ACT 1935 S1

CRIMINAL LAW (RAPE) (AMDT) 1990 S2

CRIMINAL LAW (RAPE) ACT 1981 S10

AG V X 1992 ILRM 1

D V DPP UNREP SUPREME 17.11.93

R V GLENNON (1992) 173 CLR 592

MARTIN & ANOR V R & ANOR (1980) 147 CLR 75

JAGO V THE DISTRICT COURT OF NEW SOUTH WALES & ORS (1989) 168 CLR 23

1

JUDGMENT delivered on the 16th day of March 1994by Finlay C.J.[NEM DISS].

2

This is an appeal brought by the Applicant against the Order made in the High Court on the 30th November 1993 by Hamilton P. refusing his application for a permanent stay upon his trial in the Dublin Circuit Criminal Court on certain charges.

3

The charges in respect of which the application wasmade consisted of four separate charges of unlawful carnal knowledge contrary to Section 1 of the Criminal Law (Amendment) Act, 1935, three separate charges of sexual assault contrary to Section 2 of the Criminal Law (Rape)(Amendment) Act, 1990 and two separate charges of indecent assault contrary to common law as provided for in Section 10 of the Criminal Law (Rape) Act, 1981.

4

All these offences were alleged to have been committed by the Applicant against one girl. It was accepted at the hearing in the High Court and again on the hearing of this appeal that the girl concerned was the Respondent in certain proceedings entitled The Attorney General .v. "X" which were heard in the High Court and in the Supreme Court which are reported at 1992 I.L.R. page 1 to 93. Those proceedings were proceedings brought by The Attorney General seeking an injunction to restrain the Respondent from travelling outside the jurisdiction to Britain for the purpose of having an abortion.

5

A number of issues were submitted in the High Court including an assertion that the decision in the High Court in the case of TheAttorney General .v. "X" and the judgments in this Court as well constituted an adjudication of the guilt or innocence of the accused which prevented a fair trial of the charges against him but in this Court two main submissions only were argued.

6

They were first and what was described as the main plank of the appeal that the publicity through newspapers and through the television and broadcasting media surrounding the alleged taking of samples for DNA genetic finger-printing from the Applicant, from the girl involved and from the foetus alleged to have been aborted by the girl and references to such tests in some instances as having yielded a positive or conclusive proof of the guilt of the Applicant rendered a fair trial impossible or at least constituted a very real risk of an unfair trial which could not be avoided by any directions or rulings made at the hearing of thetrial.

7

The alternative and associated submission that was made in this Court on the appeal was that the ambient publicity much of which was of a sensational and emotive kind which surrounded the whole of the facts and discussions and public controversy concerning the case of The Attorney General .v. "X" would of itself and even without the specific question of the DNA testing and the publicity surrounding that constitute a real and serious risk of an unfair trial incapable of being avoided by the trial judge.

The Principles of Law applicable
8

This Court in the recent case of D. .v. The Director of PublicProsecutions which is unreported but in which judgment was delivered on the 17th November 1993 unanimously laid down the general principle that the onus of proof which is on an accused person who seeksanorder prohibiting his trial on the ground that circumstances have occurred which would render it unfair is that he should establish that there is a real risk that by reason of those circumstances (which in that case also were pre-trial publicity) he could not obtain a fairtrial.

9

This was the standard of proof accepted as an onus by Counsel on behalf of the Applicant in this appeal. It was also accepted as I understood his submission by Counsel on behalf of the Respondent though the latter did draw to our attention certain decisions arrived at in other common law countries and in particular in Australia in which much emphasis was laid upon the balancing between the public requirement of the trial and conviction of guilty persons committing criminal offences and the requirement to try and ensure in some instance as expressed in those decisions "as far as practicable" a fair trial. The three main decisions relied upon in this context were The Queen .v. Glennon 1992, 173 C.L.R. 592, Martin & Anor. .v. The Queen andAnor. 1980, 147 C.L.R. 75, Jago .v. The District Court of New South Wales and Others 1989, 168 C.L.R. 23.

10

Even apart from what appears to be the submission of both sides in this case that we should follow our own judgments in the case of D. .v. The D.P.P. I see no reason on reconsidering the judgments and statements of principle which are unanimous in that case to depart from them. Furthermore, insofar as the question of balance between the public right and interest to see the proper trial and conviction of persons guilty of criminal offences and the right of an individual to a fair trial under our constitutional provisions, I am satisfied that no mere statement about balancing would be correct. I would prefer to follow the statement contained in the...

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