DS -v- Judges of the Circuit Court and Anor (the DPP)
SUPREME COURT
Judgments delivered on June 6th, 2008, by Mrs Justice Denham and Mr Justice Kearns; Mr Justice Hardiman, Mr Justice Fennelly and Mr Justice Finnegan concurring.
JUDGMENT
An appeal by the DPP against a decision of the High Court to prohibit a third trial succeeded on a number of grounds, but was ultimately dismissed, and the High Court decision to prohibit a new trial was upheld.
BACKGROUND
The case concerned a married father of three who had been charged with sexual abuse offences relating to two girls, his nieces. One was born in 1980, the other in 1982, and the offences had allegedly taken place in 1993 and between 1994 and 1997. In both cases the girls were babysitting in the house of the accused, and they claimed that when they stayed overnight he came into the bedroom where they slept and manually interfered with them.
Complaints were made in 2001 and charges were brought in 2002. He applied for separate trials in relation to each complainant, which was granted. The first trial, was aborted on the second day due to mistakes by the defence, and a new trial ordered. This took place in March 2003 and resulted in a not guilty verdict from the jury.
The trial in relation to the second complainant began on July 3rd, 2003, and the next day the jury disagreed on all counts. A retrial took place in March 2004 when the jury returned a not guilty verdict on one count, and dis-agreed on two others.
The DPP commenced a prosecution on these two counts. The applicant brought judicial review proceedings to stop this third trial going ahead, claiming it was a violation of his rights to a fair trial under Article 38 of the Constitution; that it would violate his right to a fair trial under the European Convention on Human Rights; that a retrial following two previous trials was contrary to a rule of practice of long standing and was oppressive and an abuse of process.
His solicitor swore an affidavit saying that the continual retrials had caused great hardship to the applicant and his family, and that a consultant psychiatrist had diagnosed them all as suffering from extreme stress. His wife was on anti-depressants, and had been alienated from her family by the charges, as one of the complainants was her niece. His eldest daughter had performed poorly in the Leaving Certificate, and was the victim of abusive remarks about her father in school. His son had lost weight and had become withdrawn. The youngest child was very clingy and distressed.
In the High Court Mr Justice O'Neill restrained the DPP from proceeding with any further trials, invoking the principle of double jeopardy. He held that the correct balance between 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. Where two juries in separate trials failed to reach a verdict, a third trial for the same offence would not be a trial in due course of law as required by Article 38 of the Constitution, he said.
He found that after this there was a risk of an innocent person being convicted, arising from the potential for an "adjustment of the evidence" and the potential pre-judicial notoriety arising from the previous trials.
The DPP appealed this ruling to the Supreme Court. Among his 12 grounds of appeal were: that the trial judge erred in holding that the balance between the right of the public to prosecute and the need to guard against the danger of repeat trials was correctly achieved by limiting the number of trials to two, that after that a third trial would not be a trial in due course of law under the Constitution and that after two trials the risk of an innocent person being convicted becomes unacceptable; that he erred in concluding that it was for the courts and not the Oireachtas to strike that balance; that he erred in concluding that where a jury's failed to reach a verdict due to disagreement, the public interest in having criminal charges prosecuted to a verdict had been amply protected; that he erred in law in concluding that the double jeopardy principle applied here; that he erred in finding that it was irrelevant that the applicant had sought separate trials, thereby multiplying the number of trials; and that he erred in granting pro-hibition.
DECISIONS
Mrs Justice Denham first examined the question of the severance of the indictment into two cases. "Severance is a tool utilised by the court to protect a fair trial. That tool may not then be twisted by an accused to form a shield for him in trial to a sword prohibiting later trials." This process was part of the integrity of the criminal justice system.
She then turned to the question of an absolute rule as to the number of trials, pointing out that there was no statutory law on this issue. It was a matter requiring the exercise of a discretion on the matrix of the facts. "The circumstances will be different in every case," she said, pointing out that issues like how far the first trial went and the reason for it being abandoned were all relevant. "It is quintessentially a matter for the exercise of a discretion, and not for a hard and fast rule," she said.
Referring to double jeopardy, she said that this case did not raise the double jeopardy principle, which only applied where there had been a prior conviction or a prior acquittal, not where the jury disagreed. "A re-trial is not prohibited on this basis," she said.
"However," she added, "the fact that the double jeopardy principle has no application does not conclude the matter. The process, the multiplicity of trials, may be reviewed by the court to determine whether there has been an unfairness, in all the circumstances, so as to be contrary to trial in due course of law under the Constitution. The particular facts of each case are critical," she said. She described the effect of the charges and the trials on the man's wife and children. In addition, his mother, who had supported him throughout, very suddenly became ill and was diagnosed with leukaemia and died, for which he blamed the stress of the trials.
She said that the principle of double jeopardy had no application in this case. Delay had occurred, so that the trial has now been before the courts, in one way and another, for six years. The issue of the severance of the trials could not be raised as a sword to prohibit the trial. The question of the stress of the applicant and his family could not, of themselves, be a reason to prohibit the trial. The victim was a member of the applicant's wider family, which had been fraught with conflict for many years as a result of the trials. There were two other trials with similar charges relating to a different complainant, so that this would effectively be a fifth trial.
"No individual factor is such that of itself it would be a ground upon which to prohibit the trial of the applicant," she said. However, taking them cumulatively, the ultimate decision should be proportionate, relate to the process as a whole and to the fairness of the procedures. Bearing all the circumstances of the case in mind, it would be oppressive and unfair to prosecute a further trial in this case, so she said she would prohibit the third trial in the interests of justice, and though the DPP had succeeded on a number of grounds, she would dismiss his appeal.
Mr Justice Kearns considered American, British and Irish jurisprudence on double jeopardy in detail, examining whether there was a principle limiting the number of trials on the same charge to two.
"Far from there being a philosophy which leans against multiple trials for the same offence in the US, the true position appears to be that there is no impediment in the US to a number of trials taking place for the same offence, providing they do not fall into one of the exceptional categories outlined above," he said.
The position in England and Wales was quite different, he said, where a convention exists where, if two juries have disagreed when presented with substantially the same evidence, "the prosecution must carefully reconsider its position". However, this did not amount to a new principle in law, and did not suggest that in no circumstances could there be a third trial.
He believed that a practice similar to that operating in England and Wales has traditionally existed, even if there was no judicial pronouncement to that effect.
In Ireland the principle of double jeopardy has only been seen as applying to cases where a person had either been convicted or acquitted, he said. He concluded that the applicant could not invoke the principle of double jeopardy. However, there must come a time in the criminal process where repeated trials of a citizen may come to be seen as oppressive and an abuse of discretion on the part of the DPP.
"In the ordinary course two trials which end in jury disagreement should be seen as an adequate discharge of the public's interest in the prosecution of crime unless there are unusual factual circumstances which suggest otherwise."
Reviewing this case as a whole, he said he saw no circumstances which suggest that there are unusual or exceptional circumstances which would justify treating this case as one where a third trial should be permitted, and he therefore dismissed the appeal.
The full text of this judgment is available on www.courts.ie
David Goldberg SC and John Devlin BL, instructed by Joseph S. Cuddington Co, Solicitors, Cork; Diarmaid McGuinness SC and Michael P. OHiggins BL, instructed by the Chief Prosecution Solicitor (for the DPP)