Fourth trial not per se prohibited; court dismisses appeal on abuse of process claim.

THE SUPREME COURT

[Appeal No: 203/2009

Appeal No: 204/2009]

Murray C.J.

Denham J.

Hardiman J.

Fennelly J.

Finnegan J.

BETWEEN/

A.P.

APPLICANT/APPELLANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Judgment delivered on the 25th day of January, 2011 by Denham J.

1. This case raises a net issue. It was submitted that a fourth trial per se of the applicant would be an abuse of process, a breach of

the applicant's right to a fair trial in the due course of law.

2. A.P., the applicant/appellant, referred to as "the applicant", has been charged with fourteen counts of indecently assaulting L., a

female. He was returned for trial to Waterford Circuit Criminal Court sitting in Waterford on the 18th May, 2004. The matter was

adjourned on a number of occasions. A trial commenced on three separate occasions, but on each occasion was not advanced

beyond the first witness, the complainant, before the trial judge ordered that the jury be discharged. Because of the formulation of

the ground upon which judicial review was sought, it is not necessary to analyse the basis for the three previous orders discharging

the jury. Indeed, it would not be possible to undertake such an analysis as the transcripts of the three previous occasions, when the

trial commenced, were not before the Court.

3. The relevant dates in this case are as follows. On the 28th April, 2004 the applicant was returned for trial on fourteen charges of

indecently assaulting L., a female. The charges relate to a period of time from the 20th February, 1974 to the 19th November, 1977.

The matter came to trial on the 17th January, 2006, on the 4th April, 2006 and on the 23rd May, 2006. The applicant pleaded not

guilty on each occasion and on each attempt the trial did not proceed beyond the evidence of the complainant. On the 22nd January,

2007 the applicant was granted leave to apply for judicial review, which was heard by the High Court, and a judgment was delivered

on the 10th February, 2009. The applicant filed a notice of appeal on the 22nd May, 2009. The appeal came on for hearing before this

Court on the 12th January, 2011.

4. The first time the case was prosecuted was before Waterford Circuit Court on the 17th January, 2006. After the complainant had

given evidence the trial judge acceded to an application on behalf of the defence and discharged the jury on the basis that evidence

given by the complainant was inadmissible and prejudicial to the applicant. On the second occasion on which a trial commenced, on

the 4th April, 2006, the complainant gave evidence and was cross-examined by defence counsel. In response to questions on cross-

examination the complainant gave evidence of a serious offence which would now be classified as rape. On an application by defence

counsel to discharge the jury on the basis that the evidence given by the complainant was inadmissible and prejudicial to the

applicant, the trial judge discharged the jury. The third time a trial commenced was on the 23rd May, 2006 when the complainant

gave evidence inter alia of physical assaults. The learned trial judge acceded to an application by defence counsel that the jury be

discharged. The detail of these applications and court orders are not relevant to the issue before the Court. Their relevance is simply

that on three occasions a trial has been commenced where the applicant was charged with the same offences. This lays the ground

for the issue raised on the application for judicial review.

5. The applicant brought an application for leave to apply for judicial review to the High Court, which was granted by Peart J. on the

22nd January, 2007. It was heard by McCarthy J., who delivered judgment on the 10th February, 2009.

6. In the statement required to ground the application for judicial review the ground upon which the relief was sought was:-

"A fourth trial of the applicant [A.P.] in relation to the said charges would amount to:

(i) An abuse of the process;

(ii) A breach of the applicant’s right to a fair trial in the course of law as required by Article 38.1 and 40.4.1 of the

Constitution of Ireland.”

Thus it advanced a net issue, that a fourth trial would be an abuse of process and/or breach of the Constitution.

7. When an applicant seeks leave to apply for judicial review he does so on specific grounds stated in the statement required. On the

ex parte application for leave the learned High Court judge may grant leave on all, or some, of the grounds sought or may refuse to

grant leave. The order of the High Court determines the parameters of the grounds upon which the application proceeds. The process

requires the applicant to set out precisely the grounds upon which the application is to be advanced. On any such application the

High Court has jurisdiction to allow an amendment of the statement of grounds, if it thinks fit. Once an application for leave to appeal

has been granted the basis for the review by the Court is established.

8. In this case the ground upon which the relief was sought is as set out previously. This then is the scope of the review to be made

by the Court.

9. The High Court, in a wide ranging judgment, refused the application. In the analysis by the learned High Court judge he addressed

issues outside the grounds granted for the judicial review, in the absence of any order, or consent, to amend the statement of

grounds. In this he fell into error. A court, including this Court, is limited in a judicial review to the grounds ordered for the review on

the initial application, unless the grounds have been amended. In this case the grounds for review are limited, essentially that a fourth

trial would be an abuse and unfair, and were not amended.

10. The law on the issue of multiple trials has been addressed in several cases of this Court. It is not simply a numerical matter of

allowing a specific number of trials. The jurisprudence requires consideration of all the circumstances of each case and the application

of the Constitution and the law to the situation.

11. In D.S. v. Judges of the Cork Circuit Court and the Director of Public Prosecutions [2008] 4 I.R. 379 at issue was whether a third

trial should be prohibited. This Court held that there was no statutory limit on the number of times a person might be prosecuted

where a jury had failed to reach a verdict and that the Court would not make a rule as to the number of prosecutions permissible. It

was held to be primarily the decision of the Director of Public Prosecutions as to whether to prosecute but that the Court had a duty

to protect due process. Each case requires that a balance be drawn between competing public interests. The public interest in

prosecuting an accused should be protected, but the integrity of the due process requires protection also, guarding against the

inherent dangers of repeated trials. In that case it was held that a third trial may not per se be a breach of a trial in due course of

law, that the circumstances of the case required to be analysed.

12. In D.S. v. Judges of the Cork Circuit Court and Anor there were two previous trials where the case was heard by two juries, the

first of which was unable to reach a verdict and, the second of which, disagreed. In this case there is an entirely different situation,

as the previous trials never advanced beyond the first witness, the complainant, and a jury has not yet heard the prosecution and

defence case.

13. In considering a case to determine whether a retrial would be constitutional, all the circumstances require to be considered by a

court. These may include many factors. For example, if the offences are serious (as they are here) that is an important element; if

there has been prosecutorial delay which had a prejudicial effect on an accused's situation, that would be a factor; the length of time

a case is in a legal system may be a relevant factor; and issues of stress and anxiety may be raised, evidence given, and be relevant

in the circumstances. However, none of these factors, or indeed any others, fall to be considered in this case in light of the net issue

before the Court.

14. It is well established that the Director of Public Prosecutions has the primary role in initiating prosecutions. He holds an

independent statutory office established to fulfil this role. He has the information which enables an appropriate decision to be made on

all the circumstances of the case. A court would be slow to intervene but would intervene if necessary to protect constitutional

rights and any relevant aspect of the public interest, including the due process of the trial.

15. In this case, as is the usual situation, the Director has knowledge of all the circumstances of the case. For some reason, not

divulged to the Court, it was decided to prosecute the applicant for indecent assaults only of the complainant. The previous trials

were stopped because of evidence given by the complainant. Presumably the Director envisages that a fair trial for the applicant may

proceed on these fourteen charges in all the circumstances.

16. A degree of concern arises for the complainant. She is a victim in this situation. On three occasions she has been called to give

evidence of the events in issue. Clearly these are distressing situations for her, in which she gave evidence of serious offences.

17. The Court was informed that the complainant had made a statement that she did not wish to give evidence in any further trial.

However, the Court was informed that she had withdrawn this subsequently. Consequently, counsel for the Director of Public

Prosecutions informed the Court that it was hoped that the complainant would give evidence in any future trial. It is clear that these

long drawn out proceedings are an added stress to the complainant, and indeed to others.

18. There is a net issue before the Court in this case. It is whether a fourth trial is per se prohibited. I am satisfied that such a rule of

law does not exist. There is no rule under statute law, common law or the Constitution, which limits the number of prosecutions, or

retrials, which may occur. Each case requires to be considered on its own facts to determine whether, in all the circumstances, a

further prosecution would be constitutional. A fourth trial is not per se prohibited. That is sufficient to determine this case. Thus I

would refuse the relief sought.

19. As an addendum, it should be noted what this judgment is not about. This is not a case of a retrial after, for example, jury

disagreements. In this case, on three occasions, the trial was commenced but did not proceed beyond the first witness. There is no

issue of delay, either prosecutorial or otherwise, before the Court. There is no issue of stress and anxiety of the applicant for

determination. This application arose on a net issue as to whether a fourth trial would be prohibited per se, and the answer to the

question is in the negative. No further issues fall to be determined in this judicial review.

20. Of course, if a further trial is commenced in this case, the learned trial judge retains the duty to ensure that there is a fair trial.

Nothing stated in this judgment encroaches upon that duty.

Conclusion

21. For the reasons stated I would dismiss the appeal and refuse the relief sought.