D.S. (applicant) v. Judges of the Cork Circuit and the Director of Public Prosecutions (respondents) Judicial review - Restraint on further prosecution - Whether limit on number of trials after two end in jury disagreement - Whether double jeopardy principle has application beyond acquittal or conviction
The High Court (Mr Justice O'Neill); judgment delivered October 16th, 2006
The correct balance between protecting the public right of a full and fair opportunity to prosecute to a verdict by a jury, and at the same time guarding against the obvious and inherent dangers of repeat trials, which in itself is a very important public interest, is correctly achieved by limiting the number of trials that may be had which end in jury disagreement at two trials. Beyond two such trials the risk of an innocent person being convicted becomes unacceptable. The risk arises from the potential for the adjustment of evidence where it was seen to have been inadequate in the previous trials and more importantly the potential prejudicial notoriety that will inevitably be attached to an accused person the more often he is tried for the same offence.
The High Court so held is granting the relief claimed.
David Goldberg, SC, and John Devlin, BL, for the applicant; Mícheál P. O'Higgins, BL, for the respondents
Mr Justice O'Neill said that leave had been granted to the applicant to seek by way of judicial review a permanent injunction restraining the second named respondent from taking any further steps in the prosecution entitled People (DPP) v. D.S., pending before Cork Circuit Criminal Court. The grounds on which leave was given were, in summary; that the further prosecution of the applicant who had already been tried twice for the same offence was a violation of the applicants right to a fair trial pursuant to Article 38 of the Constitution; that a retrial of the applicant violated the applicants right to a fair hearing pursuant to Article 6 of the European Convention on Human Rights; that a retrial of the applicant, he having been tried twice on the same offences was contrary to a long standing rule of practice, that a retrial of the applicant would be oppressive to the applicant and an abuse of process; and that the applicants right to the expeditious institution of criminal proceedings had been violated.
The applicant was returned by the District Court to Cork Circuit Criminal Court for trial in respect of charges of sexual assault allegedly perpetrated on one T.L. and S.L. At the outset of the trial an application was made on behalf of the applicant to sever the indictment so that the charges in respect of each of the complainants would be tried separately. The learned circuit judge granted this application and the trial proceeded in respect of three counts on the indictment relating to charges of sexual assault on T.L. On November 8th, 2002, counsel for the applicant applied to discharge the jury and despite objections by the prosecution the learned trial judge acceded to that application. A second trial in respect of eight charges relating to T.L. commenced on March 6th, 2003, and the applicant was acquitted on March 12th, 2003, on all counts. The trial in respect of the charges relating to S.L. commenced on July 3rd, 2003, and ended with a jury disagreement on July 4th, 2003. A retrial commenced on March 2nd, 2004, and on March 4th, 2004, the jury disagreed on counts 1 and 2 and acquitted the applicant on count no.3.
Mr Justice O'Neill said the issue which primarily arose for consideration in the case was whether the applicant was entitled to have any further prosecution of him in respect of these charges restrained or prohibited on the grounds that a third trial following jury disagreements in the previous two, violates the ancient common law prohibition of double jeopardy and/or is an abuse of the process of the court and in either case a third trial would not be a trial in due course of law as required by Article 38(1) of the Constitution.
The applicant relied heavily on the following statement from Black J. giving the opinion of the United States Supreme Court in the case of Green v United States 355 U.S. 184 where the learned judge says the following in respect of double jeopardy :- "The underlying idea, one that is deeply ingrained in at least the Anglo American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offence, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty."
It was submitted that this opinion had direct application to the circumstances of the instant case and lead to a conclusion that a third trial would offend the double jeopardy principle. It was further submitted that a third trial in which there was no suggestion that the evidence would be any different to the previous two, would be an abuse of process and oppressive to the applicant and not a trial in due course of law as required by the Constitution. The applicant submitted that there was a convention or practice of long standing; that when, after two trials, a jury had failed to agree on a verdict, that the prosecution would not seek a further trial, and hence the second named respondent was in breach of this long standing practice in seeking a third trial, and in so doing was seeking to subject the applicant to an abuse of process.
For the respondents it was submitted that the prohibition on double jeopardy in our law is confined to the special pleas of autrefois acquit or autrefois convict. In this regard reliance was placed on the judgment of Kenny J. in the case of O'Leary v. Cunningham IR at 379. It was submitted that the jurisprudence of the courts of the United States excludes the application of the double jeopardy prohibition where a retrial is ordered as a necessity arising out of circumstances such as a mis-trial, owing to a jury disagreement. In this regard reliance is placed on the cases of U.S. v. Perez Wheat 579 and Wade v. Hunter 336 US at 688-689. It was further submitted that in the Court of Appeal in the United Kingdom in the case of Frank Henworth 2 CR App.R. 47, the Court of Appeal refused to elevate the long standing convention, to the effect that where two juries had disagreed the prosecution did not seek a further trial, to a proposition of law, but that in that case the Court of Appeal recognised that repeated prosecutions could be an abuse of process; as to whether such abuse occurred would depend upon the circumstances of each case and in that particular case the court had declined to find that there had been any abuse of process. It was submitted that the applicant could not point to any ground upon which it could be said that a third trial would be unfair to him and it was submitted that there was no grounds upon which it could be said that a third trial would not be a fair trial as required by the Constitution. It was further submitted that the case of the Attorney General v. Thomas Kelly (No. 2) IR 109 was ample authority for the proposition that where a jury had disagreed the accused might be put on trial again as often as might be necessary until the question of his guilt or innocence was determined by a verdict. It was submitted that in Ireland there was never any convention or practice, to the effect that after two jury disagreements, the prosecution would not seek a third trial.
Mr Justice O'Neill said that the instant case appeared to be the first time that the court had been asked to consider whether the common law prohibition on double jeopardy has any application beyond circumstances in which, in the first or previous trial, the accused person has either been acquitted or convicted and therefore can avail of the special plea of either autrefois acquit or autrefois convict.
Mr Justice O'Neill said that the instant case concerned the problem of repeat trials where each of the previous trials had ended in jury disagreement. That problem is expressly addressed by the United States Supreme Court in Richardson v. the United States 468 U.S. 317 . Mr Justice O'Neill said whilst the American jurisprudence to which he had been referred clearly established that there may be a retrial following one trial in which there had been a jury disagreement, he had not been referred to any American case in which the problem of a retrial after two jury disagreements had been considered and hence had no assistance from that source in arriving at a resolution of the instant conflict. Whilst Mr Justice O'Neill had been referred to case law from other jurisdictions dealing with the issue of repeat trials, there had been no reliance in those cases upon the double jeopardy prohibition - rather reliance was placed on delay, oppression and abuse of the court.
Mr Justice O'Neill said that in resolving the issues in the instant case the first question which must necessarily be addressed is whether the common law prohibition on double jeopardy has any application to the circumstances in the case. As the richest vain of authority on this topic is the American jurisprudence, that is the source to which one is drawn to for assistance and enlightenment. Mr Justice O'Neill said that two strands of thought emerge clearly from the US Supreme Court cases. 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. It is undoubtedly the case that the problem confronted in the various cases which were opened was whether a second trial was permissible. Save in the Jamaica case; Flowers v The Queen, in which the double jeopardy principle was not raised, in no case opened was there a consideration of the problem posed by a third trial for the same offence.
Mr Justice O'Neill said that in his view the correct balance between protecting that public right and at the same time guarding against the obvious and inherent dangers of repeat trials, which in itself is a very important public interest, is correctly achieved by limiting the number of trials that may be had which end in jury disagreement at two trials. In so doing the public has a full and fair opportunity to bring the case to a jury verdict and if on two occasions juries failed to reach a verdict through disagreement, it cannot be said that the public's right to a full and fair opportunity to bring the case to a jury has been curtailed or frustrated. Mr Justice O'Neill said that beyond two such trials it can fairly be said, that the risk of an innocent person being convicted becomes unacceptable. This risk arises from the potential for the adjustment of evidence where it was seen perhaps to have been inadequate in the previous trials and also perhaps more importantly the potential prejudicial notoriety that will inevitably be attached to an accused person the more often he is tried for the same offence. These factors have greater weight in this case because all of the potential witnesses come from the same rural area and the trial is scheduled to take place locally. In addition the applicant was previously tried twice in respect of similar allegations made by T.L. and notwithstanding that he was acquitted, a fifth trial could only give rise to the gravest concern as to the risk of a verdict kiltered simply by the perseverance of the State in pursuing the matter to that length. The fact that the applicant sought the severance of the indictment originally and was thus responsible for having at least two trials is irrelevant. What is at stake here is not just the safeguarding of this individual applicant but also the public interest in the preservation of the integrity of the criminal trial process.
Mr Justice O'Neill said, in his view, it could not ever reasonably be said that a person could be exposed to say four or five or more trials for the same offence where there had been jury disagreements in all the previous trials. As a matter of common sense and decency reasonable people would say that at some point, enough is enough. In principle, the point at which there should be a prohibition on a further trial is after all relevant public interests have been satisfied; namely after the public have had a full and fair opportunity to bring the case to a jury twice. Where two juries in separate trials fail to reach a verdict, because of disagreement, that public interest has been amply protected. At that point, there should be a prohibition of a further trial of the same person for the same offences in order to safeguard that individual from the risks of a verdict distorted by the dangers of multiple trials and to protect the public interest in preserving the integrity of the criminal trial process.
As it followed that a third trial of a person for the same offence where in the two previous trials a jury has disagreed, would not be a trial in due course of law Mr Justice O'Neill reached the conclusion that the applicant was entitled to the relief claimed.
Solicitors: Joseph S. Cuddigan & Co (Cork) for the applicant; Chief State Solicitor for the respondents.
• P.J.Breen, barrister