Fourth criminal trial dismissed as applicant failed to prove abuse of process or unfair trial rights.

THE SUPREME COURT

APPEAL NOS. 203/09 & 204/09

Murray C.J.

Denham J.

Hardiman J.

Fennelly J.

Finnegan J.

BETWEEN:-

A.P.

APPLICANT/APPELLANT

-AND-

THE DIRECTOR OF PUBLIC PROSECUTIONS

-AND-

THE JUDGES OF THE CIRCUIT COURT

RESPONDENTS

JUDGMENT of Mr. Justice Fennelly delivered the 25th day of January 2011.

1. The Appellant stands charged with 14 counts of indecent assault against one LAL (“the complainant”), a female. The offences

alleged are said to have occurred in County Waterford over a four year period between February 1974 and February 1978,

commencing when the complainant was eight years of age.

2. The complainant made the complaint which led to the present criminal prosecution in 1999, more than twenty years after the date

of the last of the alleged offences. The appellant was returned for trial on 28th April 2004. He pleaded not guilty and was placed on

trial in the Circuit Criminal Court in Waterford on three dates in 2006: 17th January, 4th April and 23rd May. On each occasion the jury

was discharged by order of the trial judge by reason of evidence having been given which the trial judge considered to be inadmissible

and prejudicial to the appellant.

3. When the case was listed for trial on a fourth occasion on19th December 2006, a medical certificate was produced showing that

the complainant was medically unfit to attend. The case was further adjourned.

4. On 27th January 2007, Peart J made an order granting the appellant leave to apply for judicial review by way of an order of

prohibition of the further trial of the appellant. The ground on which the appellant was given leave to make that application was:

“A fourth trial of the Applicant in relation to the said charges would amount to:

An abuse of the process;

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

the Constitution of Ireland.”

5. Each of the fourteen charges was laid as being indecent assault contrary to common law as provided by section 6 of the Criminal

Law (Amendment) Act 1935. The book of evidence, as exhibited in the grounding affidavit of the appellant’s solicitor, discloses two

principal statements and two shorter ones from the complainant. She describes a variety of acts of sexual abuse alleged against the

appellant. They included oral, anal and vaginal penetration. Bearing in mind that the law with regard to these events was as it existed

in the 1970’s, prior to the passing of the Criminal Law (Rape)(Amendment) Act, 1990, it is clear that only events of the third type

would then have amounted to rape. Behaviour of the first two types would amount to sexual assault. The complainant in her

statements also alleged acts of physical abuse against the appellant.

6. The appellant’s solicitor, in his grounding affidavit, described the circumstances leading to the discharge of the jury at each trial.

At the first trial, the complainant, he says, alleged that “the applicant inserted his penis into her mouth until he ejaculated and he

often entered his penis into her private parts.” At the second trial, the complainant gave evidence to more or less exactly the same

effect. At the third trial, the complainant gave evidence of the appellant “hitting, kicking and hurting her and pulling her hair.” On

each occasion, according to the affidavit, the learned trial judge acceded to the application for discharge of the jury on the basis

that evidence given by the complainant had been inadmissible and prejudicial to the accused.

7. The State Solicitor, in an affidavit sworn in opposition to the application, says that, at the first two trials, the “complainant gave

evidence of alleged sexual acts including rape which was prejudicial to the accused.” The learned trial judge acknowledged that it was

very difficult for the complainant to limit her evidence but stated his view that “the statements were unfair and prejudicial to the

accused.” The appellant’s solicitor, in his replying affidavit, says that, at the second trial, the prosecution contested the prejudicial

nature of the evidence of the complainant. In respect of the evidence of physical assaults at the third trial, the affidavit says that

the learned trial judge ruled that the evidence was prejudicial because it was outside the scope of the charges preferred against the

appellant. The State Solicitor contends that the learned trial judge was incorrect in making this ruling, firstly, because the charges

included an element of assault and, secondly, because the book of evidence included references to physical assault.

8. There is no transcript of evidence before the Court in respect of the proceedings at any of the trials. Thus, it is not possible to

examine sufficiently precisely the reason for the trial judge’s decision to discharge the jury. It is not claimed, for example, that the

evidence given went outside the terms of the statements of the complainant as notified in the book of evidence. It certainly appears

that those statements contained allegations that the appellant on many occasions put his penis into the mouth of the complainant,

though not that he ejaculated. Her statement also contained allegations of physical violence.

9. The appellant’s solicitor, in a replying affidavit, introduced a number of new matters:

• That the prosecution, both in respect of the complaint and the prosecution itself, had been characterised by very

significant delay which had an impact on the entitlement of the appellant to a fair trial on a fourth occasion; reference

was made to the time which had elapsed since the period from 1974 to 1978;

• That in November 2002 the complainant had written a letter to the appellant demanding that he pay her the sum of

€5,000 as a condition of her dropping her complaint; counsel for the appellant had cross-examined the complainant about

this letter at the second trial;

• That the ongoing history of the criminal process had been a source of very significant stress, embarrassment, anxiety

and uncertainty for the appellant; both the complainant and the appellant reside in the same town and the trial has taken

place on each occasion in Waterford;

• That the question of the guilt or innocence of the appellant will most probably be determined according to whom the

jury believes to be the more credible;

• That, by virtue of the repeated trials, the complainant is aware of the issues on which the defence will rely and is at a

significant advantage in terms of her presentation as a witness at any future trial.

10. The application for judicial review was heard in the High Court by McCarthy J, who delivered judgment on 2nd February 2009. The

learned judge distinguished the decision of this Court in D.S. v Judges of the Cork Circuit and the Director of Public Prosecutions

[2008] 4 I.R. 379, because that case, unlike this, was concerned with successive disagreements by a jury after a complete trial.

Although the Court had prohibited a further trial in that case partly on the ground that the jury had twice failed to reach a verdict,

that case was not authority for any general proposition that more than two trials cannot take place in given circumstances where the

discharge of the jury does not result from a disagreement. There could be no inference, as might be derived from a jury disagreement,

that there was no reasonable prospect of a conviction due to the infirmities or intrinsic weakness of the case, such that the

community’s right to prosecute was vindicated, or the public duty of the Director of Public Prosecutions discharged by placing the

matter before a jury on only two (or even three) occasions. D.S. was nonetheless, a helpful authority. The learned judge addressed

the considerations which had been regarded as relevant by Denham and Kearns JJ in that case reaching the following conclusions.

11. The present case, on its facts, concerned a more serious category of offence. The appellant was not to be blamed for the

discharge of the jury, though the learned trial judge expressed his own view that the jury should not have been discharged on any of

the occasions. The evidence of the complainant was admissible: although some of that evidence amounted to the commission of rape,

the facts were relevant and admissible to prove the lesser offence of indecent assault. He rejected the claim that a fourth trial would

be unfair because the complainant might adjust her evidence: he considered changes in evidence to be in the nature of the trial

process and did not involve any diminution of the rights of the appellant in the absence of evidence of abuse of process. Although he

accepted that the case was “of some antiquity” it did not suffer from what is a common difficulty from the point of view of the

defence that it was a case of bare assertion and bare denial. While there had been very considerable delay between the dates of the

alleged offences and the first complaint, thereafter matters proceeded without delay. There was no specific prejudice or any

unavoidable risk of a fair trial. He considered that there was a body of evidence giving rise to the existence of a strong prosecution

case. He referred, in particular, to partial admissions allegedly made by the appellant in response to garda questioning, as disclosed in

the book of evidence, and to the statement of evidence of the brother of the complainant that he had heard the complainant, who

was with the appellants in an adjoining room of the family home, complain of being hurt by the appellant. The anxiety and associated

matters of which the appellant’s solicitor complained were an unavoidable consequence of being an accused person in such trials,

though such matters are worsened by a multiplicity of trials.

12. At the hearing of the appeal, Mr Michael Counihan, Senior Counsel, emphasised his reliance on the cumulative effect of all that

had happened rather than on any single element such as the mere fact that the appellants faced a fourth trial. He accepted that this

was not a case of double jeopardy. He relied on the combination of delay from the dates of the alleged offences, the letter written by

the complainant in November 2002 demanding payment, the unnecessary and unavoidable stress and anxiety suffered by the

appellant and, above all, the fact that the appellant has already been put on trial three times and now faces a fourth trial. He

submitted that the learned trial judge should not have considered the correctness of the three decisions to discharge the jury. He

disputed the judge’s view that there was strong evidence to support the complainant. The admissibility of the alleged admissions of

the appellant would have been disputed on the basis that he did not have access to a solicitor.

13. Ms Sunniva MacDonagh, Senior Counsel, on behalf of the respondent, that the decision whether to proceed with a fourth trial was

primarily a matter for the Director, who has taken the view that there is a strong public interest in the prosecution of these offences,

which are especially serious. The Director has knowledge of all the relevant facts and circumstances. The power to bring a

prosecution on indictment is assigned by statute to the Director as an independent officer.

Consideration of appeal

14. The first matter to be determined is the scope of the appeal. The statement of grounds, as quoted above, is based only on the

allegation of abuse of the process and infringement of the appellant’s right to a fair trial arising from the fact that the appellants is to

be put on trial for a fourth time. The grounding affidavit recounts the history of the appellant’s charging and the three previous trials.

It proceeds to state that the appellant “has secured three jury discharges on the basis of the infirmities in the prosecution evidence

adduced by the prosecution” and adds that the appellant “was in no way culpable for the said discharges.” The solicitor says that the

appellant “has suffered severe distress and anxiety in having to undergo three criminal trials” and that it would be unfair if there were

to be a fourth trial. The solicitor then claims that there is some risk of “adjustment of evidence,” if the matter is be tried for a fourth

time.

15. The application for judicial review is thus very narrowly based. It claims in essence that it is inherently unfair to put the appellant

on trial on a fourth occasion.

It is notable that neither the original grounding affidavit nor the statement of grounds makes any mention of delay or of the letter

demanding money of November 2002. I am satisfied that the appellant should not be allowed to argue either of these matters on the

present appeal. No leave was granted to rely upon them. Delay is, in many cases, a legitimate element of background. For example,

where there is prosecutorial delay, it is well established that the fact of pre-existing long delay in making a complaint may be a

relevant factor. However, there is no complaint of prosecutorial delay in the present case. Insofar as long delay may, in itself, be a

ground for restraining a prosecution, it will be necessary to establish that the delay itself has led to the existence of a real and

serious risk to the fairness of the trial. (H v Director of Public Prosecutions [2006] 3 I.R. 575. No leave was obtained from the High

Court to argue delay as a ground.

16. The same applies to reliance on the complainant’s letter of November 2002 demanding money as a condition of dropping her

complaint. The appellant has relied on the decision of this Court in MG v Director of Public Prosecutions [2007] 2 IR 738. The appellant

was clearly aware of this letter prior to the commencement of the prosecution. Instead of seeking judicial review based on the letter,

he chose to use it as material for cross-examination at one of the trials. He did not include it as a ground in the application of judicial

from which the present appeal arises.

17. It remains to consider the essential ground on which the present application for judicial review has been based from the outset,

namely that it is a breach of the appellant’s right to due process that he should have to face a fourth trial. A subsidiary ground is that

the complainant, following cross-examination at the earlier trials will be in a position to adjust her evidence to the disadvantage of the

appellant.

18. The Director has formed the view that the offences with which the appellant is charged are serious ones and says that it is in the

public interest that the appellant should be tried for them. The primary function of deciding to initiate or to continue a prosecution is

conferred on the Director of Public Prosecutions. By virtue of his office, he is made aware of all the relevant circumstances of each

particular case. The evidence is gathered by An Garda Síochána and placed before him. He will also in many cases be made aware of

the personal circumstances of the accused person and of witnesses such as the complainant. For example, the Court was informed in

the course of the hearing of the appeal about the attitude adopted by the complainant from time to time to the prospect of a further

trial and conveyed to the Director. He is thus, in the first instance, in possession of the background facts and issues affecting the

decision to have a further trial.

19. In her judgment in D.S. v Judges of the Cork Circuit and the Director of Public Prosecutions, cited above, Denham J, at page 387

of the report, discussed the issue as follows:

“The decision making power to bring a prosecution on indictment lies with the Office of the Director of Public

Prosecutions, which is an independent office, established by statute. The decision to bring a prosecution depends on all

the circumstances of a case. In some situations it may not be appropriate to bring a prosecution in the first instance, or

for a second time, for good reasons. It requires an exercise of discretion on the matrix of facts. The circumstances will be

different in every case.”

20. She pointed out that there was no legislative provision as to the number of trials and no firm rule for the courts as to the number

of potential rials. She observed at page 389:

“The Oireachtas has made no rule as to the number of trials possible, but has chosen the route of an independent

decision maker, in the form of the Director of Public Prosecutions, and has given to him the power to determine when a

prosecution should be brought. Thus primarily it is the Director's decision. This does not exclude the duty of the court to

protect due process.

The position, therefore, is that no organ of state has set a limit on the number of trials which may be prosecuted. Rather,

each organ of state retains to itself its power and duty, to be exercised in all the circumstances of each case.”

21. Having restated that it is the Court’s duty to protect due process, she recalled the judgment of Finlay C.J. in Z v Director of

Public Prosecutions [1994] 2 I.R. 476 at 506 to the effect that the the “onus of proof which is on an accused person who seeks an

oredr prohibiting his trial on the ground that circumstances have occurred which would render it unfair is that he should establish that

there is a real risk that by reason of those circumstances …...he could not obtain a fair trial.”

22. In my view, it is appropriate in a case such as the present to enquire as to whether the appellant has shown that it would be a

breach of his right to due process in the sense that it would be oppressive to put him on trial for a fourth time.

23. I do not accept that the appellant has demonstrated that he will suffer any disadvantage from what he calls adjustment of

evidence. He merely asserts that the complainant is aware from three previous trials of the approach likely to be taken by the

defence at any future trial. Hardiman J considered this issue extensively in his judgment in McNulty v Director of Public Prosecutions

[2009] 3 I.R. 572. It suffices to quote the following:

“Where there is a second trial, neither side is bound to approach the case in the same way that they approached the first

trial. New witnesses may be called, or witnesses called on the first occasion may be omitted. Almost every trial, especially

if it proceeds to the point where the defendant is given in charge to the jury, will develop in a way which could not be

wholly predicted before it started. Each side will have learned a good deal more about the other side’s case. A witness

who looked very impressive on paper may appear to some disadvantage in giving oral evidence, cross-examination may

put an entirely different complexion on certain evidence, and legal argument, where there is any, may reveal weaknesses

in the case of either side in the way they address certain topics, which have not previously occurred. It is perfectly

legitimate for either the prosecution or the defence to adapt to these discoveries by looking again at how it will present

its own case. Where there is a second trial, almost inevitably, each side will know more about the other side’s case than

it did when the first trial started.”

24. The appellant has pointed to no particular element of unfairness and thus has not shown that his retrial would, for this reason be

unfair.

25. Nor do I accept that the appellant has produced any evidence of stress or anxiety worthy of consideration in this context. He has

sworn no affidavit himself. The affidavits of his solicitor provide no evidence of any likely distress over and above what would naturally

and inevitably be accompanied by any trial process.

26. One is left then with an application stripped down to the essential point originally made, which amounts to a claim that to put him

on trial for a fourth time at all is unfair and oppressive.

27. The decision of the Court cannot depend simply on whether the Court agrees with the decision of the Director to proceed to a

further trial. The process of judicial review does not mean that the Court may substitute itself for the Director. It is appropriate in a

case such as the present is to enquire whether the appellant has discharged the burden which is upon him to show that it would be a

breach of his right to due process in the sense that it would be oppressive to put him on trial for a fourth time. Bearing in mind that,

unlike D.S., the trial of the appellant never reached the stage where the jury was required to consider its verdict. On every occasion,

the trial came to a halt during the evidence of the complainant. The Court has at best incomplete evidence as to the precise reasons

for the discharge of the jury and cannot pronounce on the correctness or otherwise of the decisions of the trial judge. Ultimately, I

do not believe that the appellant has shown grounds for prohibiting his further trial. I would dismiss the appeal.