Z v DPP

• Jurisdiction: Ireland
• Judge: President of the High Court
• Judgment Date: 30 November 1993
• Neutral Citation: 1994 WJSC-HC 1949
• Court: High Court
• Docket Number: Record No. 1993 161 JR
• Date: 30 November 1993

1994 WJSC-HC 1949

THE HIGH COURT (Judicial Review)

Record No. 1993 161 JR

Z v. DPP

In the matter of Section 45 of the Courts (Supplemental Provisions) Act, 1961 as

amended.

And in the matter of a criminal prosecution, entitled "The people (at the suit of the

Director of Public Prosecutions), Prosecutor -v- Accused, Bill No. 22/93)

presently pending before the Dublin Circuit Criminal Court.

And in the matter of an application for an Order of Prohibition and an Order

granting a Restraining Injunction

between

'Z'

Applicant

and

The Director of Public Prosecutions

Respondent

Citations:

CRIMINAL LAW (AMDT) ACT 1935 S1

CRIMINAL LAW (RAPE)(AMDT) ACT 1990 S2

CRIMINAL LAW (RAPE) ACT 1981 S10

AG V X 1992 1 IR 1

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S45

JURIES ACT 1976

EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTALFREEDOMS ART 6

RSC O.84 r22(4)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S45(1)

CONSTITUTION ART 34.1

TWELFTH AMENDMENT TO THE CONSTITUTION ACT 1992

THIRTEENTH AMENDMENT TO THE CONSTITUTION ACT 1992

FOURTEENTH AMENDMENT TO THE CONSTITUTION ACT 1992

GOODMAN INTERNATIONAL V HAMILTON 1992 2 IR 543

AG, PEOPLE V SINGER 98 ILTR 112

CONSTITUTION ART 38.1

CONSTITUTION ART 38.5

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

R V HUBBERT (1975) 29 CCC (2d) 279

AG V X 1992 1 IR 41

CONSTITUTION ART 38.2

CONSTITUTION ART 38.3

CONSTITUTION ART 38.4

O CALLAGHAN V AG 1993 2 IR 17

D V DPP UNREP SUPREME 17.11.93

SINGER (NO 2), IN RE 98 ILTR 112

EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTALFREEDOMS ART 5

Synopsis:

CRIMINAL LAW

Offence

Prosecution - Restraint - Grounds - Publicity - Accused - Prejudice - Saturation coverage of offence by newspapers, radio and television - Whether fair trial possible - (1993/161 JR - Hamilton P. - 30/11/93) - [1994] 2 ILRM 481

|Z. v. Director of Public Prosecutions|

1 Judgement of the President of the High Court delivered on the 30thday of November 1993.

2 The Applicant in these proceedings has been returned for trial at the Dublin Circuit Criminal Court and is presently awaiting trial therein in respect of the offences set forth in Bill No. 22/93 which consist 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.

3 On the 27th day of May 1993 the Applicant herein applied for and obtained an Order from the High Court which provided, inter alia, that

"The Respondent, his servants or agents be restrained from taking any further steps in the prosecution of the said proceedings presently pending before the Dublin Circuit Criminal Court until after the hearing of Judicial Review proceedings."

4 That the Applicant do have leave to apply by way of an application for Judicial Review for the following reliefs:

5 (1) A declaration that the nature and extent of the adverse broadcast and/or print media (including theatrical productions) and/or published books) pre-trial publicity concerning the alleged facts and/or surrounding circumstances giving rise to the prosecution entitled "The People (at the suit of the Director of Public Prosecutions) Prosecutor -v- Accused (Bill No. 22/93)" presently pending before the Dublin Circuit Criminal Court has irreparably prejudiced the prospect that the Applicant herein, could have a fair and/or impartial trial.

6 (2) A declaration that the nature and extent of the adverse contributions of divers members of Dáil Eireann and/or Seanad Eireann in the course of Parliamentary debates of the Oireachtas concerning the alleged facts and/or surrounding circumstances giving rise to the prosecution entitled "The People (at the suit of the Director of Public Prosecutions) Prosecutor -v-

7 Accused, (Bill No. 22/93)" presently pending before the Dublin Circuit Criminal Court have irreparably prejudiced the prospect that the Applicant herein could have a fair and/or impartial trial.

8 (3) A declaration that the published findings of fact made by the High Court on or about the 17th day of February 1992 in the course of the Judgement entitled "The Attorney General -v- X (1992) Irish Law Reports 1" being the official Court report of the said judgement published by the Incorporated Council for Law Reporting in Ireland, have irreparably prejudiced the prospect that the Applicant herein could have a fair and/or impartial trial.

9 (4) A Declaration that the published findings of fact made by the Supreme Court on or about the 15th day of March 1992 in the course of judgements entitled "The Attorney General -v- X (1992) 1 Irish Reports 41" being the official Court report of the said judgements and published by the Incorporated Council for Law Reporting in Ireland, have irreparably prejudiced the prospect that the Applicant herein could have a fair and/or impartial trial.

10 (5) An Order pursuant to the provisions of Section 45 of the Courts (Supplemental Provisions) Act 1961 as amended directing that the Application herein be heard in camera.

11 (6) An order providing for such directions as to this honourable Court did seem meet.

12 The grounds upon which such relief was sought were as appears from the said Order set out at 129 of the statements of Grounds of Application filed on behalf of the Applicant herein in accordance with the rules of the Superior Courts. These grounds were:-

13 (1) The material facts in issue in respect of the criminal prosecution entitled "The People (at the suit of the Director of Public Prosecutions) Prosecutor -v- Accused, Bill No. 22/93" presently pending before the Dublin Circuit Criminal Court have been irreparably prejudged by the decision of the High Court and/or the Supreme Court in a civil case entitled "The Attorney General -v- X ( 1992 Irish Reports Page 1-93)"

14 (2) The material facts in issue in respect of the criminal prosecution entitled "The people (at the suit of the Director of Public Prosecutions) Prosecutor -v- Accused (Bill No. 22/93) presently pending before the Dublin Circuit Criminal Court have been irreparably prejudged by reason of the nature and/or extent of the prejudicial publicity concerning the facts and/or surrounding circumstances and/or decisions and/or publication of the judgements of the High Court and the Supreme Court respectively in a civil proceeding entitled "The Attorney General -v- X (1992) 1 Irish Reports 1.

15 (3) The prospective members of any jury to be empanelled to try the criminal prosecution entitled "The people (at the suit of the Director of Public Prosecutions) Prosecutor -v- Accused (Bill No. 22/93)" presently pending before the Dublin Circuit Criminal Court, pursuant to the provisions of the Juries Act 1976 have been irreparably prejudiced by reason of the nature and/or extent of the pre-trial publicity concerning the facts and/or surrounding circumstances of the decisions of the High Court and the Supreme Court in a civil case entitled "The Attorney General -v- X 1992 1 Irish Reports Page 1".

16 (4) There exists a present and/or continuing threat to the conduct of a fair and/or impartial criminal trial.

17 (5) The nature and/or extent of the pre-trial publicity concerning the facts and/or surrounding circumstances giving rise to a criminal prosecution entitled "The people (at the suit of the Director of Public Prosecutions) Prosecutor -v-

18 Accused (Bill No. 22/93) has:

19 (a) Irreparably prejudiced the prospect of a fair and/or impartial trial for the Applicant.

20 (b) Asserted explicit and/or tacit assumptions of fact and/or guilt on the part of the Applicant herein.

21 (c) Has pre-judged the merits of the criminal trial and/or has prejudiced the outcome of such criminal trial and/or expressly, or by implication, conveys an adverse view as to the issue of the guilt or innocence of the Applicant.

22 (d) Has irreparably and/or improperly damaged the prospect of an impartial jury being empanelled.

23 (e) Violated the Applicant's right to natural and/or constitutional justice.

24 (f) Violated the Applicant's right to a criminal trial in due course of law.

25 (g) Violated the Applicant's right to a jury trial in a criminal matter.

26 (h) Violated the Applicant's right the constitutional presumption of innocence in a criminal trial.

27 (i) Violated the Applicant's right to constitutional equality.

28 (j) Violated the Applicant's constitutional right to liberty of his person.

29 (k) Has rendered nugatory an prospect of the Applicant herein being properly in a position to mount an adequate defence to the criminal proceedings, the subject matter of the applications herein.

30 (6) The decisions of the High Court and the Supreme Court in the Civil proceedings "The Attorney General -v- X (1992) 1 Irish Reports 1have:

31 (a) Determined the criminal issue of guilt or innocence in the course of the civil proceeding.

32 (b) Denied and continues to deny the Applicant herein, any, or any reasonable opportunity, to be made aware of the nature and extent of the evidential matters and/or legal submissions grounding the allegations purporting the justify a finding of criminal guilt in the course of the said civil proceeding to which the Applicant was not a party.

33 (c) Made a finding of criminal guilt in the course of the civil proceeding where no opportunity was properly afforded to the Applicant to present any evidence and/or to make any legal submission on his behalf.

34 (7) The Respondent failed to take any or any reasonable steps to stop and/or ameliorate the nature and extent of the prejudicial pre-trial publicity concerning the facts and or surrounding circumstances of the matters...