High Court refuses leave to prohibit retrial as new evidence was previously disclosed and available to applicant.

THE HIGH COURT

JUDICIAL REVIEW

2025 No.964 JR

[2025] IEHC 375

BETWEEN

SIDNEY SUTTON

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS, AN GARDA SÍOCHÁNA, THE

COMMISSIONER OF AN GARDA SÍOCHÁNA, THE MINISTER FOR JUSTICE,

IRELAND AND THE ATTORNEY GENERAL OF IRELAND (Application No. 2)

RESPONDENTS

Judgment of Ms. Justice Mary Rose Gearty delivered on the 2nd of July, 2025

1. Introduction

1.1 The Applicant seeks leave, for a second time, to prohibit his criminal trial for assault causing harm to his then partner. The Court of Appeal has ordered a retrial. His application to the Supreme Court to overturn that decision was refused. He applied unsuccessfully to this Court for leave to prohibit the retrial ([2024] IEHC 155) and my refusal of leave was upheld by the Court of Appeal ([2024] IECA 303).

1.2 The Applicant relies on a 999 call, the absence of forensic reports and an argument in respect of corroboration. None of these matters involves new evidence. Henderson v Henderson (1843) 3 Hare 100 and A.A. v the Medical Council [2003] IESC

70 apply: all such issues were raised, or could have been raised, in his first case.

2. New evidence and newly discovered evidence

2.1 The Applicant’s retrial is listed for mention on the 4th of July when he expects the prosecution to seek a trial date. The papers lodged in this application run to 2,056 pages in a pdf document. He applied on an urgent basis on Monday 30th June, was given time to make submissions on Tuesday 1st July and this judgment issues today to facilitate his return to the Circuit Court in time to fix a trial date.

2.2 The Applicant submits that new evidence has come to light in the form of a recording of a 999 call. He has not exhibited a transcript of the call but played it in court in the course of his application. He avers that this CD only became available to him in February 2025 but has confirmed in his Statement of Grounds (at paragraph 5) that the CD which he says elsewhere was withheld from him has been in his possession since 2020 but that he only discovered and played it in February 2025. In oral submissions he confirmed that it was included in disclosure sent to him in 2020. He refers to February 2025 as his “date of knowledge” but this concept does not apply to the facts of this case, or indeed to any situation in which a book of evidence or disclosure is sent to an accused.

2.3 If it were otherwise, accused persons could carefully decline to read anything contained in the case against them, including the disclosure, until the week before their trial and then successfully claim that they had discovered “new” evidence. It may be new to the Applicant, but it is certainly not new evidence. On that basis, there can be no ground to prohibit his trial due to the 999 call as it was available to him long before his last application for judicial review was made.

2.4 While theoretically possible that startling new evidence might form the basis for such an application, this is far from being such a case. The voice on the CD gives a number, a female voice confirms that a woman has made a request for the gardaí and an ambulance, the caller says the woman sounded stressed, and gives the address of the Applicant. There is no description of a crime nor is any allegation made. The caller is one of the emergency services operators, talking to another.

2.5 The details of the 999 call were sufficient to alert the gardaí to attend at the address read out. From their statements in the book of evidence, it is apparent that they attended at the address given where they found the Applicant and, when they saw blood on the Applicant’s clothes, entered the house. There they found blood spatters and other evidence, as outlined in the book of evidence. What was observed and found is strongly contested by the Applicant and, where he agrees with some issues, he gives a completely different account as to how they arose.

2.6 There is nothing in the call which takes the matter out of the jurisdiction of the trial judge and nothing in the call can affect the fairness of the trial so fundamentally as to justify an order of prohibition, even if it had been raised in the first case. The Applicant argues that the 999 call forms the basis of an argument that the entry into his home was unlawful as no offence was described in the call. I cannot see any legal basis for such an argument on the facts of this case, but I am not the trial judge. This argument about unlawful entry is a matter for trial, not for prohibition.

3. Forensic Statements and Uncorroborated Statements

3.1 The other claims, i.e. absence of forensic statements and uncorroborated witness statements, were raised (or should have been raised if they have been phrased in different terms in these proceedings) in the Applicant’s 2023 proceedings.

3.2 On the 19th of June 2025, a Circuit Court Judge refused to dismiss this case under section 4E of the Criminal Procedure Act 1967 as amended. This is a matter which may form the grounds of an appeal in due course, but it is not the function of the High Court to review a criminal trial once it has commenced. As is clear from the decisions in his 2023 proceedings, neither this Court nor the Court of Appeal considered it irrational or perverse of the Respondent Director to continue with the prosecution in light of the conflicts of evidence. Both Courts made it clear that the issues raised were matters for a jury at trial and not for a judge attempting to predict how the evidence in this case would emerge and what witnesses may say on cross-examination. The allegations of mala fides were not substantiated.

3.3 The Applicant attempts to re-litigate the claim that the prosecution did not disclose any forensic reports in this case, I do not agree that this is a new issue. The fact that the Applicant only appreciated the significance of certain statements when preparing for a Circuit Court application is not a factor that makes old evidence new. The transcripts were made available to him in 2020, but he claims that his “date of knowledge” was February 2025 because that is when he thought of this issue. His date of knowledge was in 2020 and, in any event, he raised this issue before under the heading of suppression of evidence. I found as a fact that there was no deliberate suppression of a forensic report as contended for by the Applicant.

3.4 The fact that it has been confirmed that there is no such forensic report is something that, while it may not have been specifically confirmed before 2025, was clear. It may be best practice to prepare such a report, but the fact that no report was prepared in that regard does not create grounds for a new judicial review.

3.5 The evidence remains the same, it is the evidence that was before me when I refused leave in the last proceedings and nothing in this application has changed the position in respect of forensic reports. It was clear to me last year that there was no suppression of a report, and it has been confirmed that there never was such a report. This is not a significant change, it constitutes a formal admission as to what was clear to anybody reading the transcript of the original trial.

3.6 Insofar as the Applicant now claims that there are uncorroborated statements in the prosecution case this is both factually and legally incorrect. More fundamentally, of course, this too is something he should have raised before now if he wanted to rely on it. He has submitted that as a litigant in person he is learning more about what may be argued in such cases, but the law does not permit endless re-litigation as litigants think of new points, for obvious reasons. The law requires a party to bring his entire case in one set of proceedings: Henderson v Henderson (1843) 3 Hare 100 and A.A. v the Medical Council [2003] IESC 70.

3.7 Insofar as the Applicant submits that the issue may have supported his first application for judicial review, it could not have done so. There is no law to substantiate his assertion that statements must be corroborated as this is not correct. In any event, the statement of the complainant is corroborated by that of a witness who claims to have seen the Applicant assault her. Corroboration is independent evidence tending to support an allegation. Independent, in this context, means independent of that witness in the sense that it comes from another source, and thus testimony of a second witness is capable, in law, of corroborating testimony from the first witness. There is no rule of law that forensic evidence is required. The law also allows convictions on the basis of uncorroborated testimony, so the legal premise of this submission is misconceived in both respects.

4. Miscellaneous Arguments and Conclusion

4.1 The Applicant asked that a judge who has never considered his previous applications be assigned to hear this matter. He did not ask me to recuse myself, however. As he appeared to agree, this would not only have been inefficient, but also impractical. The Applicant filed an application in respect of an ongoing case, which will be listed in the Circuit Court 2 days from now, containing over 2,000 pages for the Court to read. It would be difficult for any judge to prepare this case in the time span involved unless she had some familiarity with the case. More fundamentally, there was no reason to assign this case to another judge.

4.2 Most of the Applicant’s submissions rest on the premise that there was an unlawful entry to his home. That is a matter for the Circuit Court Judge to decide and not for the High Court. While he referred me to the Supreme Court authority of The People (at the suit of The Director of Public Prosecutions) v J.C. [2015] IESC 31, consideration of this case is a matter for the trial judge.

4.3 The Applicant referred me to the legal submissions prepared for his application to dismiss the prosecution case under s.4E of the Criminal Procedure Act 1967 (as amended). Nothing therein persuades me to re-open this case.

4.4 The Applicant requested that I stay the Circuit Court trial while these proceedings continue. There is no basis for a stay as there is no basis for leave to be granted.

4.5 Finally, the Applicant referred me to a letter from a barrister in respect of earlier proceedings which letter, he contends, supports some of his arguments. As he conceded in oral submissions, this letter has been available for years and cannot be relied upon to re-litigate his case. Again, A.A. v the Medical Council applies.

4.6 The Applicant is not entitled to the reliefs sought and the application is refused.