Supreme Court dismisses appeal against third trial order due to abuse of discretion and unfair procedures despite serious allegations.

THE SUPREME COURT

JUDICIAL REVIEW

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

Kearns J.

[Record No. S.C. 417/06]

BETWEEN

D.S.

APPLICANT

AND

THE JUDGES OF THE CORK CIRCUIT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS/APPELLANTS

JUDGMENT 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 COURT

The 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 PRINCIPLES

In 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 States

Having 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 to protect an individual from being

subjected to the hazards of trial and possible conviction more than once for an alleged offense. In his

Commentaries, which greatly influenced the generation that adopted the Constitution, Blackstone recorded:

‘…the plea of autrefois acquit, or a former acquittal, is grounded on this universal maxim of the common law

of England, that no man is to be brought into jeopardy of his life more than once for the same offence’

United States v. Perez 22 U.S. 579 (1824) is still the landmark case on the interpretation of the Constitutional provision. It

was a case in which the jury disagreed following the trial of Joseph Perez for a capital offence and were discharged by the

court. The prisoner’s counsel claimed that this outcome, arrived at without his consent, was a bar to any future trial for the

same offence. The U.S. Supreme Court, however, disagreed, Justice Story stating as follows in the course of his opinion:-

“We think, that in all cases of this nature, the law has invested Courts of justice with the authority to

discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into

consideration, there is a manifest necessity for the act or the ends of public justice would otherwise be

defeated. … we are of opinion, that such a discharge constitutes no bar to further proceedings, and gives no

right of exemption to the prisoner from being again put upon trial.”

In these circumstances the ‘jeopardy’ is seen as continuing until the process ends in acquittal or conviction. The general rule

therefore is that retrial of the defendant is not barred where a mistrial occurs. The general rule is subject to a number of

exceptions, one being that no retrial will be directed where the jury is discharged because of evidentiary insufficiency. The

State must endeavour to put its best foot forward when prosecuting and not call time on a trial when sufficient evidence has

not been mustered to satisfy a jury of guilt. Nor may the prosecution look to the trial process as a means of gathering

material for a second bite of the cherry. Where such behaviour is identified the principle of double jeopardy may be invoked

in the United States to prevent the further prosecution of a defendant.

In Burks v United States 437 U.S. 1 (1978), the Supreme Court made clear that reversal for trial error, as distinguished

from evidentiary insufficiency, does not constitute a decision to the effect that the Government has failed to prove its case.

The court stated at p.15:-

“As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a

determination that a defendant has been convicted through a judicial process which is defective in some

fundamental respect, e.g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial

misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt

free from error, just as society maintains a valid concern for insuring that the guilty are punished.”

Turning specifically to the issue of a retrial where a jury has disagreed, the U.S. Supreme Court addressed this issue in the

context of double jeopardy in Richardson v. United States 468 U.S. 317 (1984), when Rehnquist J in delivering the opinion

of the court stated at pp.323 and 324:-

“The case law dealing with the application of the prohibition against placing a defendant twice in jeopardy

following a mistrial because of a hung jury has its own sources and logic. It has been established for 160

years, since the opinion of Justice Story in United States v. Perez, 9 Wheat. 579 (1824), that a failure of the

jury to agree on a verdict was an instance of ‘manifest necessity’ which permitted a trial judge to terminate

the first trial and retry the defendant, because ‘the ends of public justice would otherwise be defeated’. Since

that time we have had occasion to examine the application of double jeopardy principles to mistrials granted

for reasons other than the inability of the jury to agree … Nevertheless, we have constantly adhered to the rule

that a retrial following a ‘hung jury’ does not violate the Double Jeopardy Clause. Logan v United States, 144

U.S. 263. 297-298 (1892). Explaining our reasons for this conclusion in Arizona v. Washington, 434 U.S. 497

(1978), we said:-

‘Without exception, the courts have held that the trial judge may discharge a genuinely deadlocked

jury and require the defendant to submit to a second trial. This rule accords recognition to

society’s interest in giving the prosecution one complete opportunity to convict those who have

violated its laws’.

We are entirely unwilling to uproot this settled line of cases by extending the reasoning of Burks, which arose

out of an appellate finding of insufficiency of evidence to convict following a jury verdict of guilty, to a

situation where the jury is unable to agree on a verdict. Thirty-five years ago we said in Wade v. Hunter, 336

U. S. 684, 688-689 (1949):

‘The double-jeopardy provision of the Fifth Amendment, however, does not mean that every time a

defendant is put to trial before a competent tribunal, he is entitled to go free if the trial fails to end

in a final judgment. Such a rule would create an insuperable obstacle to the administration of

justice in many cases in which there is no semblance of the type of oppressive practices at which

the double-jeopardy prohibition is aimed. There may be unforeseeable circumstances that arise

during a trial making its completion impossible, such as the failure of a jury to agree on a verdict.

In such event the purpose of law to protect society from those guilty of crimes frequently would be

frustrated by denying courts power to put the defendant to trial again. . . What has been said is

enough to show that a defendant's valued right to have his trial completed by a particular tribunal

must in some instances be subordinated to the public's interest in fair trials designed to end in just

judgments.’ ”

He later continued:-

“… we hold on the authority of these cases that the failure of the jury to reach a verdict is not an event which

terminates jeopardy. Our holding in Burks established only that an appellate court's finding of insufficient

evidence to convict on appeal from a judgment of conviction is, for double jeopardy purposes, the equivalent

of an acquittal; it obviously did not establish, consistently with cases such as Perez, that a hung jury is the

equivalent of an acquittal. Justice Holmes' aphorism that ‘a page of history is worth a volume of logic’

sensibly applies here, and we reaffirm the proposition that a trial court's declaration of a mistrial following a

hung jury is not an event that terminates the original jeopardy to which petitioner was subjected.”

The learned trial judge in the present case attached some considerable importance to the case I have already mentioned,

namely Green v. United States 355 U.S. 184 (1957).

That was a case where the petitioner was indicted and tried in a Federal Court for first degree murder. The judge instructed

the jury that it could find him guilty of either first degree murder or second degree murder. The jury found him guilty of

second degree murder and its verdict was silent on the charge of first degree murder. The trial judge accepted the verdict,

entered judgment, dismissed the jury and sentenced the petitioner to imprisonment. On appeal, his conviction was reversed

and the case was remanded for a new trial. On remand the petitioner was tried again for first degree murder on the original

indictment, convicted of first degree murder and sentenced to death, notwithstanding his plea of former jeopardy. The court

held that the petitioners second trial for first degree murder placed him in jeopardy twice for the same offence in violation of

the Fifth Amendment, holding that his jeopardy for first degree murder came to an end when the jury was discharged at the

conclusion of his first trial and that he could not be retried for that offence.

Clearly that case turned on very special facts, because the jury’s verdict, as was noted by the court at p.190, could be seen

“as an implicit acquittal on the charge of first degree murder”. As was stated by Black J. at p.191:-

“…the result in this case need not rest alone on the assumption, which we believe legitimate, that the jury for

one reason or another acquitted Green of murder in the first degree. For here, the jury was dismissed without

returning any express verdict on that charge and without Green's consent. Yet it was given a full opportunity

to return a verdict and no extraordinary circumstances appeared which prevented it from doing so. Therefore

it seems clear, under established principles of former jeopardy, that Green's jeopardy for first degree murder

came to an end when the jury was discharged so that he could not be retried for that offense. Wade v Hunter,

336 U.S. 684. In brief, we believe this case can be treated no differently, for purposes of former jeopardy, than

if the jury had returned a verdict which expressly read: ‘We find the defendant not guilty of murder in the first

degree but guilty of murder in the second degree.’”

Thus, far from there being a philosophy which leans against multiple trials for the same offence in the U.S., the true position

appears to be that there is no impediment in the U.S. to a number of trials taking place for the same offence, providing they

do not fall into one of the exceptional categories outlined above. It has never been in doubt that a defendant can be tried a

second time for an offence where his prior conviction for that same offence is set aside on appeal (Ball v. United States 163

U.S. 662 (1896)). One recalls also the notorious case of Williams v. State of Georgia 258 Ga. 305, 369 S.E.2d 232 (1988)

– recounted so fully in John Berendt’s novel ‘Midnight in the Garden of Good and Evil’ (Random House, New York,

1994) - in which Jim Williams was convicted twice in successive jury trials of the murder of Danny Hansforth in his home

in Savannah in 1981. These convictions were quashed on each occasion by the Georgia Supreme Court. His third trial

resulted in a jury disagreement and ultimately Williams was acquitted by a jury when tried at a different location for the

fourth time. An effort to invoke the double jeopardy rule before the Supreme Court of Georgia following the third trial

failed. In delivering the judgment of that court Marshall C.J. stated (at p.6):-

“It has been recognised in many cases that the primary purpose underlying the Double Jeopardy Clause is to

prohibit the retrial of a criminal defendant where the prosecution has, at the initial trial, produced

insufficient evidence to sustain a conviction. E.g., Burks v United States, 437 U.S. 1, 98 S.Ct. 2141, 57

L.Ed.2d 1 (1978); Hall v State, 244 Ga. 86 (5), 259 S.E. 2d 41 (1979). The general rule is that retrial of the

defendant is not barred where reversal of the conviction results from trial error rather than evidentiary

insufficiency.”

Counsel for the respondent has also referred to a decision of the Court of Appeals in United States v. Gunter (United States

Courts of Appeals, Tenth Circuit, 546 F.2d 861 (1976)) where that court held that defendants could be tried a third time for

the same offence where juries in previous trials were unable to agree upon verdicts and mistrials were properly declared. In

that case and having reviewed the various authorities, including Perez, Judge McWilliams stated at 866:-

“Certainly the rationale of Perez and the other cases cited would not preclude a third trial where the first and

second trials both resulted in mistrials based on the fact of a hung jury. Indeed the rationale of Perez suggests

to us the propriety of a third trial where the prior juries were unable to agree upon a verdict. This assumes, of

course, that the concept of ‘manifest necessity’ and ‘ends of public justice’ referred to in Perez are met. Here,

in the first trial of the matter, eight defendants were brought to trial in a single trial, with each defendant

apparently having separate counsel. In such circumstances some jury confusion would appear to be inevitable.

The same situation prevailed at the second trial. Here, however, two defendants, Myers and Lambe, were

convicted. Bringing the six remaining defendants to a third trial would appear to us to meet the conditions of

Perez concerning manifest necessity and public interest. There indeed may be a breaking point, but we do not

believe it was reached in the instant case.” (Emphasis added).

Interestingly, the court indicated that had the trial court abused its discretion when discharging the jury and declaring a

mistrial, it might have reached a different conclusion. The reference to reaching a ‘breaking point’ is however of

importance to the issue under consideration in this case and is a matter to which I shall return later.

Position in England & Wales

The position in Britain in relation to a retrial after a hung jury is quite different. Firstly, there is of course no constitutional

provision governing the issue. Historically, as Blackstone noted (Blackstone’s Commentaries on the Laws of England, Vol.

3 (1769) 376 in Morrison (ed.), (Cavendish, London, 2001), p.295), a trial judge had the power to compel a jury to reach a

verdict in so far that the judge could direct that the jury be moved by cart from town to town around the circuit until it

reached a verdict. This created enormous difficulties. Before the Criminal Justice Act 1967, a jury verdict had to be

unanimous. Section 13 of that Act, as later amended, provided for a majority verdict ten to two, ten to one or nine to one if

there were less than ten jurors, if all the original jury members remain until the end of the trial.

An article written by Professor M. Cohen from the University of Sheffield “Retrial After a Hung Jury” 12 Anglo-American

Law Review 174 (1983) contains a useful summary, at p.177, of the position in the neighbouring jurisdiction with regard to

retrials following jury disagreement:-

“According to Archbold, ‘… in the event of the second jury disagreeing, it is a common practice for the

prosecution formally to offer no evidence’.. The Home Secretary, Mr Brooke, on the Report stage of the

Criminal Appeal Bill 1964 said: ‘Nobody is in doubt … that when two successive juries have failed to agree it

is the normal practice for the prosecution to offer no evidence, so that the case falls and the man is acquitted.’

As for the writers, Daniel Devlin states: ‘Should the second jury disagree, the prosecution at the third trial

will usually offer no evidence’. Arguile states: ‘If the jury fails to agree after two trials the prosecution in

practice offers no evidence at the third trial’. Professor Friedland states: ‘It is a rule of practice in England

that the accused would not be retried after the jury fail to agree on two occasions’ and Lord Patrick Devlin

states: ‘… it is almost conventional now to accept a second disagreement as tantamount to an acquittal and to

drop the prosecution’. No disagreement then on the general practice, which is borne out by two cases reported

in 1963, in which the prosecution offered no evidence after two jury disagreements.

But the question remains whether it is legally permissible to try a defendant a third or subsequent time. The

Attorney General in 1964 said: ‘I think that there is power to have any number of retrials following any

number of disagreements’. The power to retry after a jury has been discharged for any reason, including a

disagreement, was a matter of some uncertainty until the middle of the nineteenth century. It then became

established by a number of cases, the main one being Winsor, that a retrial after a discharge for disagreement

was permissible. However, it is interesting to note that none of the four judges in that case on the hearing

before the Queens Bench, and each gave a full and considered judgment, suggested that there could be more

than one retrial. Further, when affirming the decision of the Queen’s Bench, Erle CJ giving judgment on

behalf of the seven members of the Exchequer Chamber, also made no reference to the possibility of more than

one retrial.

It is submitted that it should not be inferred from the various writers’ statements (to the effect) that the

practice is to have no more than one retrial, that there is in law the power to have more than one.”

The author thereafter proceeds to argue that “the practice is indeed the law” and that the Attorney General had no

authority for his opinion that there could be any number of retrials.

Multiple trials of a person for the same offence were considered in the context of “abuse of process” by the Court of Appeal

in the case of R. v Henworth [2001] 2 Cr. App. R. 4. In that case the appellant was charged with one count of murder. He

was convicted but had his conviction set aside by the Court of Appeal whereupon a retrial occurred which resulted in a hung

jury. A second retrial then began in which the appellant conducted his own defence. Owing to difficulties in the conduct of

his defence the jury was discharged. A further retrial then took place and the appellant was convicted. He appealed against

conviction and argued that the convention which provided that if a jury disagreed on two occasions the prosecution would

not seek a further trial should also apply to the circumstances of this case where the jury on the first occasion convicted.

The Court of Appeal held, however, that when a serious crime is committed and a clear case to answer as far as a defendant

was concerned is established, the clear public interest lies in having a jury decide positively one way or the other whether

that case was established.

In the course of his judgment, Kennedy L.J., considered the reasons for the existence of the convention, stating (paras. 18

and 19):-

“We suspect that at least part of the rationale for the convention to which Mr Clegg has referred is that the

prosecution should only proceed against any given defendant if they consider that there are real prospects of

obtaining a conviction from a jury. If two juries have disagreed when presented with substantially the same

evidence inevitably the prosecution must carefully reconsider its position.

We see no reason to conclude that it should apply in the sort of circumstances with which we are concerned in

this case. Furthermore, we would not elevate it into a proposition of law. We do have to have in mind, for

example, the situation which might arise if one jury which disagreed was shown consequently to have been

interfered with, or some highly persuasive piece of evidence were to emerge during the course of a retrial, too

late perhaps to be used in that trial but capable of constituting devastating evidence on behalf of the Crown if

there were to be further proceedings.”

On the issue of abuse of process, Kennedy L.J., mirroring the reference to “a breaking point” mentioned in the U.S. case

of Gunter, accepted that in any given case a point might come where it would be an abuse of process for the prosecution to

try again. He stated as follows (at para. 26):-

“We recognise the possibility that in any given case a time may come when it would be an abuse of process

for the prosecution to try again. Whether that situation arises must depend on the facts of the case which

include, first, the overall period of delay and the reasons for the delay; second, the results of the previous

trial; thirdly, the seriousness of the offence or offences under consideration; and, fourthly, possibly, the extent

to which the case now to be met has changed from that which was considered in previous trials.”

Thus, in Charles v. The State [2000] 1 W.L.R. 384 considerations of abuse of process persuaded the Privy Council to stay

proceedings in the following circumstances. The three defendants were arrested in August, 1987 in connection with a fatal

shooting the previous day. They were held in custody and brought before a magistrate but were not committed for trial until

1988. Their trial began in 1991 when all three were convicted of murder. Their appeals on the ground of misdirection by the

trial judge were successful and a retrial took place in April, 1995. This second trial collapsed after the jury failed to agree on

a verdict. A third trial began in September, 1996, but an application to stay the proceedings was brought on the ground that

to try them for the third time after such a long delay was an abuse of process. That application was refused and in

September, 1996 all three defendants were convicted and sentenced to death. The Court of Appeal dismissed an appeal,

whereupon an appeal was brought to the Judicial Committee on the principle ground not raised before the Court of Appeal,

that the trial judge should have stayed the proceedings. Lord Slynn of Hadley delivered a judgment in which, having

acknowledged local difficulties in the provision of adequate court facilities in Trinidad and Tobago, stated at p.390:-

“Even so there may come a time when the delay is so great that even having regard to the public interest in

convicting the guilty it becomes an abuse of process and unacceptable for a prosecution to continue. The delay is

here on any view considerable and disturbing. The defendants contend that there has been no case in the Caribbean

where the delay has been so great, particularly when the charge is one of murder and when the defendants have

been under sentence of death for many years, with the increased agony, recognised in Pratt v. Attorney-General for

Jamaica [1994] 2 A.C. 1, which such incarceration imposes.

It must be stressed that the complaint here is not just on the ground of delay but also on the ground that it was quite

wrong that these defendants should have been put on trial not for the second but for the third time after so many

years and when one conviction had already been quashed and when one jury had been unable to agree on a verdict.

It may be contrary to due process and unacceptable as a separate ground from delay that the prosecution having

failed twice should continue to try to secure a conviction. In this case however both factors fall to be considered.

Their Lordships recognise that the trial judge has a margin of discretion in these cases and that they will not

readily interfere with the exercise of this discretion. After careful consideration, however, they are satisfied that the

combination of these two factors required the trial judge in this case to stay the third trial. For the prosecution to

continue was wrong in principle and constituted a misuse of the criminal process.”

Commenting upon this passage in Lord Slynn’s judgment, Kennedy L.J. in Henworth stated (at para. 25):-

“We see no reason to think that when saying what he did, Lord Slynn intended even to suggest that there should be

some new principle of law such as that for which Mr Clegg now contends. If we are wrong as to that, we

respectfully reject the suggestion that any such principle should be said by this Court to exist. Where a serious

crime has been committed and it is shown that there is a case to answer as far as a defendant is concerned, there is

a clear public interest in having a jury decide positively one way or the other, whether that case is established.”

I find the reasoning of Kennedy L.J. in the Henworth case to be persuasive. It eschews any simplistic approach which

simply states that two trials are enough - and that in no circumstances can there be a third -when careful analysis of all the

surrounding circumstances may suggest that an aborted trial, including one resulting from a hung jury, may be amenable to

an explanation which would strongly suggest that the public interest justifies a further trial. Kennedy L.J. gave a number of

examples of particular instances where a further trial might be appropriate in the citations to which I have referred.

Nonetheless, there clearly exists in England and Wales a settled practice whereby, at least in the case of successive jury

disagreements, a third trial is seen as going beyond the conventional practice. Different considerations may well arise where

there have been mistrials occurring for other reasons. Whether this is expressed as a rule of practice or rule of law may

ultimately be a matter of semantics.

THE POSITION IN IRELAND

In Ireland, the principle of double jeopardy has only been seen as applying in cases where a person tried for a criminal

offence has been either acquitted or convicted. In either situation, a plea of autrefois acquit or autrefois convict will operate

to prevent any further steps by the prosecution. The general principles were summarised by Murray C.J. in Registrar of

Companies v. Anderson [2005] 1 I.R. 21 where he outlined the position in the following manner at pp. 26 and 27:-

“It has for a long time been a principle of the common law that a person cannot be prosecuted and punished

for an offence of which he has already been acquitted or convicted. This is commonly referred to as the rule

against double jeopardy. It is a rule which applies to the prosecution of criminal offences. The rule, or what

also might be called the notion, of double jeopardy is not normally relied upon in express terms in the sense

that if a person is prosecuted for an offence arising out of the same breach of the law or the same essential

ingredients for which he has previously been tried and either convicted or acquitted, his defence to the second

prosecution will be based on the pleas of autrefois acquit or autrefois convict. If either plea is successful the

prosecution may proceed no further.

I suppose if a prosecution was initiated against a person for an offence for which he had previously been

prosecuted and was awaiting trial, he or she might well invoke the rule of double jeopardy in a general sense

but the fundamental basis for resisting the second prosecution would be grounded more on an abuse of process

or that the court concerned with the second prosecution had no jurisdiction to deal with the matter when

another court was already seized with an existing prosecution for the same offence.”

Previously, in Attorney General v. Kelly (No.2) [1938] 1 I.R. 109, the Court of Criminal Appeal gave a clear indication that

when a jury is unable to agree on a verdict there is no determination such as would enable an accused to invoke the principle

of double jeopardy.

In Kelly the appellant had been tried for murder, convicted and sentenced to death. He appealed to the Court of Criminal

Appeal and the conviction and sentence were quashed and a retrial ordered in accordance with the provisions of the Courts

of Justice Act 1928 on the ground that after the trial had concluded the accused had ascertained that certain persons, whom

he named, would give evidence on his behalf which, if accepted by a jury, would conclusively establish his innocence of the

crime of which he had been convicted. He was retried in the Central Criminal Court but the jury were unable to agree upon

a verdict and were accordingly discharged. The accused was again put upon trial, but before the trial opened he caused an

application to be made that the indictment be quashed on the basis that s.5(1)(b) of the Courts of Justice Act 1928

contemplated only one trial, so that no order for a retrial could be made thereunder, even if the first trial was aborted by

reason of the failure of the jury to agree upon a verdict.

The provisions of the sub-section stated:-

“Where the Court reverse a conviction in whole, the Court shall have jurisdiction to make an order (in this

section referred to as an order for a re-trial) authorising the person in respect of whom such conviction was

obtained to be re-tried for the same offence as that which was the subject of such conviction and shall order

that the costs of the appeal and of the new trial of the accused person shall be paid by the State, unless the

Court shall be of opinion that the necessity for the appeal and the new trial has been caused or contributed to

by the defence, and may by such order or any subsequent order direct the person in respect of whose

conviction the order was made to be retained in custody or to be admitted to bail on such terms as they think

proper.”

Sub-section 2 of s.5 provided:-

“Whenever an order for a re-trial is made under this section by the Court of Criminal Appeal or the Supreme

Court the person in respect of whose conviction the order was made may, notwithstanding any rule of law, be

again indicted and tried and, if found guilty, sentenced for the offence which was the subject of such

conviction.”

In delivering the judgment of the court, Sullivan C.J. stated (at pp. 113 and 114):-

“This court is satisfied that when that sub-section speaks of a ‘re-trial’ it contemplates a proceeding in which

the guilt or innocence of the accused is determined. There is no such determination when a jury is unable to

agree on a verdict. The word ‘re-trial’ in its legal acceptation in such a context means, in the opinion of this

Court, a complete and finished trial, and ‘when there is no verdict there has been in law no trial’: per

Crampton J. in Conway and Lynch v. The Queen 7 I.L.R.149 at p.179. It is established beyond question that

when a jury in a criminal trial have failed to agree on a verdict and have been properly discharged, the

accused may be put on trial again, and as often as may be necessary until the question of his guilt or

innocence is determined by a verdict. We are entitled to assume that the Legislature that enacted the Courts of

Justice Act 1928, was aware of that principle and that it contemplated that sect. 5, sub-sect. 1(b) of that Act

would be construed in accordance with it.”(Emphasis added)

As the only issue before the court was to determine the meaning of the word ‘re-trial’ within s.5 of the Courts of Justice

Act, 1928 and given that the Court of Criminal Appeal determined that this word meant a finished trial and that there was no

such determination when a jury is unable to agree upon a verdict, I do not share the view of the learned trial judge that what

was said by the learned Chief Justice concerning repetitious trials resulting from jury disagreements was said obiter. On the

contrary, it seems to me to be a clear statement to the effect that double jeopardy cannot arise in the context of the criminal

law process in this jurisdiction until there has been either a conviction or acquittal.

In Registrar of Companies v. Anderson [2005] 1 I.R. 21, Geoghegan J. (at p.29) highlighted what he described as the

“three essential protections” included in the principle of double jeopardy as being:-

“1. protection from being retried for an acquittal;

2. protection from retrial after a conviction;

3. protection from being punished multiple times for the same offence.”

He does not suggest that the principle of double jeopardy can be invoked where a conviction has been quashed for trial error

or because a jury has been unable to agree upon a verdict.

This line of reasoning is entirely consistent with that outlined in the American jurisprudence and in the reasoning offered by

Justice Holmes in Kepner v. United States 195 U.S. 100 (1904) when he suggested (at p.134) that there is only ‘one

continuing jeopardy’ until a case is finally disposed of; that is to say that jeopardy may be seen as continuing until

conviction or acquittal.

Certainly no Irish legislation contains any provision providing a bar to further trials where a conviction has been quashed for

trial error, or where there has been jury disagreement. Specifically, the Criminal Procedure Act 1993, which repealed and

replaced section 5 of the Courts of Justice Act 1928, contains no such provision. Section 4 of the Act of 1993 permits the

Court of Criminal Appeal to quash a conviction and order an applicant to be retried and that power is not subject to any

words of restriction. Section 4 of the Act refers to the position on retrial, stating:-

“Where a person is ordered under this Act to be re-tried for an offence he may, notwithstanding any rule of

law, be again indicted and tried and, if found guilty, sentenced for that offence.”

Notwithstanding, however, the absence of any statutory restriction, I believe, I hope correctly, that a practice similar to that

which operates in England and Wales has traditionally existed in this jurisdiction even if it is not the subject matter of any

judicial pronouncement. That practice or convention is to the effect that, if there have been two jury disagreements, a

citizen should not be put on trial a third time. Counsel for the Director of Public Prosecutions says there is no such practice

and we have been referred to no case law or legal writing in this jurisdiction which supports the existence of such a

convention or practice. I am, however, satisfied the issue can be satisfactorily resolved without reliance on any such rule or

practice.

DECISION

From the foregoing brief review of the legal position in a number of common law jurisdictions, including our own, I am

satisfied that the applicant in the present case can not invoke the principle of double jeopardy as the basis for seeking to

prohibit any further trial. He has never been convicted or acquitted of either of the two offences in respect of which a retrial

is proposed. There has been no jury determination in respect of either charge. The applicant is in continuing jeopardy in

relation to those offences.

However, as is apparent from both the authorities in the United States and in Britain, there must come a time in the criminal

process where repeated trials of a citizen may come to be seen as oppressive and as an abuse of discretion on the part of the

Director of Public Prosecutions. It may become an unfair procedure in itself to re-try. Put another way, a “breaking point”

may be reached where no further trial should be permitted if the fairness and due process requirements of Article 38.1 of the

Constitution and Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms are to be

properly observed.

I do not think that there should be an over-simplified “one size fits all” approach to the question of how many criminal trials

for the same offence should be permitted. An oversimplified or stark black and white approach to the issue would, in my

view, be a mistake. As Kennedy L.J. pointed out in Henworth, jury disagreement may occur in unusual circumstances and

for unusual reasons which might suggest that a further trial should take place. Nevertheless I think that 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. A factual analysis arising in an

application to prevent a third trial would have regard to matters such as the following:-

1. The seriousness of the offence or offences under consideration.

2. The extent, if any, to which the applicant may himself have contributed to any mishap which led to the requirement for a

further trial. By way of example, the first trial of the applicant (in relation to the complainant TL) collapsed because of

defence error. It would be in my view inappropriate to accede to a defendant’s request for relief where the applicant himself

was the cause of the earlier trial mishap.

3. Any period of delay which is plainly excessive and beyond the norm for cases of the particular type and the reasons for

such delay. A court will necessarily take into account in this context the considerable delay likely to arise in mounting any re-

trial. It is now unusual to have a re-trial immediately after an aborted trial, such as occurred in years past, notably in The

State v McMullen [1925] 2 I.R. 9, where the re-trial took place two days after the first trial.

4. The extent to which the case now to be met has altered from that which was considered in previous trials.

Counsel for the Director has argued that the Court should only intervene to review a decision of the Director to prosecute

when there is evidence of mala fides or of an improper motive or improper policy. I am satisfied that O’Neill J. was entirely

correct in holding that the matter under consideration in the instant case has little or nothing to do with the Director’s

decision to initiate a prosecution, as was the case in The State (McCormack) v. Curran [1987] IRLM. 225 and Eviston v.

Director of Public Prosecutions [2002] 3 I.R. 260.

The case of Eviston v. Director of Public Prosecutions does, however, highlight that a court may invoke the concept of fair

procedures to halt a prosecution in particular circumstances. In Eviston, the Court intervened to prohibit a prosecution in

circumstances where the Director had decided - with ample grounds for doing so - not to prosecute Mrs. Eviston in relation

to a driving offence. He later changed his mind in circumstances where the family of the deceased victim of the road

accident in which Mrs. Eviston had been involved made representations by letter to the then Minister for Justice. The

Director reversed his original decision without having any new or additional evidence and having already notified Mrs

Eviston of his intention not to prosecute. Both the High Court and this Court had little difficulty in acknowledging the basic

unfairness of allowing a prosecution to be brought in such circumstances. As stated by Keane C.J. at p.299:-

“Viewing the matter objectively, and leaving aside every element of sympathy for the applicant, I am forced to

the conclusion that in circumstances where the respondent candidly acknowledges that there was no new

evidence before him when the decision was reviewed, the applicant was not afforded the fair procedures to

which, in all the circumstances, she was entitled.”

In Eviston the Court intervened to prevent an unfair procedure and that intervention stopped the further prosecution of Ms.

Eviston. While this Court did not characterise its intervention as one to prevent an abuse of process, it is difficult to see what

complaint there could have been if the judgment had been based on abuse of process grounds.

Looking at the facts of the present case, I would observe at the outset that the trial process has been in train since 2002.

While O’Neill J referred to the prospect of five trials of the applicant, there have been two trials only on the charges under

consideration. The trial in respect of the first complainant was severed from the other complainant’s case at the request of

the applicant, and the jury was discharged in the first of the trials in relation to the first complainant because of an error on

the part of the defence. I do not see that the applicant can build a case on either of these grounds which in any event relate

to different charges involving a different complainant.

On the scale of gravity of sexual offences, however, the surviving charges in this case can only be described as being at the

less serious end of the spectrum. In so saying I do not ignore the huge distress described by the complainant. However the

offences occurred many years ago, mainly between 1993 and 1994 and there has thus been considerable delay in bringing

this matter to a conclusion. This Court has frequently commented upon the deleterious effects of delay in the context of

criminal prosecutions.

The medical reports make it abundantly clear that the applicant and his family have suffered enormously as a result of the

accusations which have been extremely damaging in the small rural community in which the parties reside. The applicant

was asked to leave his position as trainer for the local GAA club. His wife has been alienated from her own family and

driven to taking anti-depressants. His eldest daughter was verbally abused at school by some girls who asked her questions

such as “When did your father last rape somebody?” His other children have also become withdrawn and stressed. The

applicant’s mother died during the court hearings and the applicant believes her death was hastened by the stress of the

ongoing proceedings. The applicant himself missed work at times and found it difficult to socialise or go out with his wife.

His psychiatrist says that he is under “very major stress”.

There is no suggestion that the applicant himself bears any responsibility for the prolongation of the criminal proceedings,

albeit that he can not invoke the first aborted trial in aid of his application. However, any error which may have occurred at

that particular juncture was not his personal fault.

On a more general basis and because it is one of the factors to which I have adverted, I see no basis for holding that in the

context of any re-trial (if one were to be permitted) the State would be precluded from serving a Notice of Additional

Evidence if some further information or evidence had come to light between a first and subsequent trial: the Criminal

Procedure Act 1967 so permits. I feel it necessary to mention this point as the trial judge expressed concerns that repeated

trials increased the risk of an innocent man being convicted through the ‘adjustment’ of evidence where it was seen to have

been inadequate in previous trials. I am not quite sure what he meant by this comment which, on one view, implies that

evidence might be fabricated or doctored if a re-trial were to be permitted. To the extent that the trial judge was expressing

such a view or deriving a basis for such a view from the ‘evidentiary insufficiency’ cases in the U.S. I do not believe this to

be an appropriate inference from those cases. Furthermore, there is no suggestion in this case that the evidence ever

changed from one trial to the other.

Reviewing the case as a whole, however, I see 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 following the two jury

disagreements to date.

I would therefore dismiss the appeal and affirm the order of the learned High Court judge on the grounds I have identified,

namely, abuse of discretion and fair procedures.