S2 AP v DPP [2011] IESC 2 (25 January 2011)


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Supreme Court of Ireland Decisions


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URL: http://www.bailii.org/ie/cases/IESC/2011/S2.html
Cite as: [2011] IESC 2, [2011] 1 IR 729

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Judgment Title: AP v DPP

Neutral Citation: [2011] IESC 2

Supreme Court Record Number: 203 & 204 /09

High Court Record Number: 2007 34 JR

Date of Delivery: 25/01/2011

Court: Supreme Court

Composition of Court: Murray C.J., Denham J., Hardiman J., Fennelly J., Finnegan J.

Judgment by: Denham J.

Status of Judgment: Approved

Judgments by
Link to Judgment
Result
Concurring
Denham J.
Appeal dismissed - affirm High Court Order
Murray C.J., Hardiman J., Finnegan J.
Fennelly J.
Murray C.J., Hardiman J., Finnegan J.
Murray C.J.
Hardiman J.


Outcome: Dismiss




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 IR 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.

JUDGMENT of Mr. Justice Fennelly delivered the 25th day of January 2010.

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 IR 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 IR 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 IR 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.

JUDGMENT of Murray C.J. delivered on the 25th day of January 2011

I have had the advantage of reading the judgments of Denham J. and Fennelly J. I agree with those judgments and the orders which they propose. In agreeing with those judgments which address all the issues arising for decision in this appeal I express no view on any other matter referred to in the course of the appeal. There is a procedural aspect to this appeal on which I propose to make some brief observations.

In the course of her judgment Denham J. refers to the scope of the Court’s jurisdiction in judicial review proceedings as being confined to the grounds specified in the order granting leave to bring judicial review proceedings, or any additional grounds arising from an amendment to that order.

Because there has been a not insignificant number of appeals in which there was a lack of clarity and even confusion as to the precise issues which were before the High Court I propose to make a number of observations in that regard.

Judicial review constitutes a significant proportion of the cases which come before the High Court and before this Court on appeal. A party seeking relief by way of judicial review is required to apply to the High Court for leave to bring those proceedings and can only be granted such leave on specified grounds when certain criteria, required by law, are met. In most cases the applicant must demonstrate that he or she has an arguable case in respect of any particular ground for relief and there are also statutory provisions setting a somewhat higher threshold for certain specified classes of cases.

In the interests of the good administration of justice it is essential that a party applying for relief by way of judicial review set out clearly and precisely each and every ground upon which such relief is sought. The same applies to the various reliefs sought.

It is not uncommon in many such applications that some grounds, and in particular the ultimate ground, upon which leave is sought are expressed in the most general terms as to the alleged frailties of the decision or other act being impugned, rather in the nature of a rolled up plea, and alluding generally to want of legality, fairness or constitutionality. This can prove to be quite an unsatisfactory basis on which to seek leave or for leave to be granted particularly when such a ground is invariably accompanied by a list of more specific grounds.

Moreover, if, in the course of the hearing of an application for leave it emerges that a ground or relief sought can or ought to be stated with greater clarity and precision then it is desirable that the order of the High Court granting leave, if leave is granted, specify the ground or relief in such terms.

There has also been a tendency in some cases, at a hearing of the judicial review proceedings on the merits, for new arguments to emerge in those of the applicant which in reality either go well beyond the scope of a particular ground or grounds upon which the leave was granted or simply raise new grounds.

The court of trial of course may, in the particular circumstances of the case, permit these matters to be argued, especially if the respondents consent, but in those circumstances the applicant should seek an order permitting any extended or new ground to be argued. This would avoid ambiguity if not confusion in an appeal as to the grounds that were before the High Court. The respondents, if they object to any matter being argued at such a hearing because it goes beyond the scope of the grounds on which leave was granted, should raise the matter and make their objection clear. Although it did not arise in this particular case, it is also unsatisfactory for objections of this nature to be raised by the respondents at the appeal stage when no objection had been expressly raised at the trial or there is controversy as to whether this was the case.

In short it is incumbent on the parties to judicial review to assist the High Court, and consequentially this Court on appeal, by ensuring that grounds for judicial review are stated clearly and precisely and that any additional grounds, subsequent to leave being granted, are raised only after an appropriate order has been applied for and obtained.

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

I agree, save perhaps in one particular, with the judgments of Denham J. and Fennelly J. in this case and therefore agree that the appeal must be dismissed. However, for the reasons which appear below I wish to add a few words.

The length of time occupied by this case is a cause of very grave concern to me. The applicant is charged with fourteen counts of indecent assault against the complainant which are alleged to have occurred between early 1974 and early 1978. More than twenty years after the last of the offences is alleged to have occurred, in 1999, a complaint was made to the gardaí. A criminal investigation ensued with the result that the appellant was charged and eventually returned for trial on the 28th April, 2004. He pleaded not guilty and was duly arraigned and given in charge to a jury on three separate occasions: on the 17th January, 2006, the 4th April, 2006 and the 23rd May, 2006. On each occasion the jury was discharged by the learned trial judge by reason of evidence which the trial judge considered to be inadmissible and prejudicial to the applicant.

The Director of Public Prosecutions, perhaps unprecedentedly, decided to put the appellant on trial on a fourth occasion. The trial was fixed for the 19th December, 2006. But on that date a medical certificate in respect of the complainant was produced with the result that trial did not proceed and was further adjourned. At this point the applicant sought prohibition of a fourth trial by way of judicial review.

The sole ground on which leave to seek judicial review was sought was that:

It will therefore be seen that the issue raised by the appellant was as to whether a fourth trial, in and of itself, would amount to an abuse of the process or a breach of the applicant’s constitutional rights.

After the respondent had put in a Statement of Opposition, verified by the affidavit of Mr. Hutchinson, Solicitor, the appellant’s solicitor, Mr. Burke, filed a replying affidavit, the second affidavit filed on behalf of the applicant.

In this affidavit there was for the first time a complaint of delay. There was also an entirely new allegation that, whereas the applicant was first interviewed in respect of these matters by the gardaí in April, 2003, he had previously been “the subject of a written demand for money from the complainant. This document was exhibited. It is a letter dated the 29th November, 2002, from the complainant to the applicant. Insofar as is relevant it said:

      “I am letting you know that I am going ahead with the Court, I was up with the guards on Tuesday and I told them that I want €5,000 of you before the 15th January, 2003, if you don’t come up with the money by then they will arrest you on the 16th January… nobody only the guards know that I am sending you this letter, they told me you will get at least ten years in jail. So it is your choice. I want a letter wrote back to me in two weeks time, so I can let the guards know. Don’t take this letter as a joke because the guards have a photocopy of it.”
This, plainly, is a threat to proceed with the criminal charge, which it is said will lead to a sentence of at least ten years, unless the appellant pays the complainant €5,000. It is also claimed, surely falsely, that the guards are aware of this threat and will arrest the applicant unless he “come[s] up with the money” by the specified date. There is of course no reason to believe that the statements made about the gardaí in the letter are true, but it is undisputed that the letter quoted above was written by the complainant to the defendant/applicant.

In my view, there are, or might be, substantial issues both of delay and issues arising from the letter quoted. One cannot say more for the reasons set out below.

Although the question of delay and of the letter was raised by the appellant’s solicitor in his affidavit, neither question is reflected in the grounds on which leave to seek judicial review was sought. Furthermore, after the facts had been deposed to on affidavit by Mr. Burke, no attempt was made to amend or extend those grounds.

In the argument on the hearing of this appeal, Mr. Michael Counihan S.C. (who did not appear in the High Court or at the criminal trials) submitted that the material in relation to delay and the letter was in fact before the Court and might be considered in the interest of doing justice between the parties. For the Director of Public Prosecutions, Ms. Sunniva McDonagh S.C. said that her side was not on notice of any intention to rely on these matters and no attempt had been made to bring them properly into the case.

In too many judicial review cases, it will be found that little attention has been paid to the absolute necessity for a precise defining of the grounds on which relief is sought until the case is actually before the Court. In my view, this case furnishes an extreme example of this unfortunate tendency. The delay in the case and the consequent anxiety to the defendant are an obvious feature but they are not relied upon at all in the grounds and are only developed in the Solicitor’s replying affidavit. There is no attempt to define the precise level of anxiety and the effect if any on other family members, as was done in D.S. v. The Judges of the Cork Circuit and the DPP [2008] 4 IR 379.

If delay was an obvious feature of the case, the letter demanding money was the most dramatic feature of the case. But this was not mentioned either until the solicitors replying affidavit does not feature at all in the Statement of Grounds. There is clearly scope to argue that such a development may affect the prosecution’s ability to proceed to a further trial: see M.G. v. DPP [2007] 2 IR 738. The defendant was aware of this letter some years prior to the first trial and one must assume that his legal advisers were aware of it also. Nothing was done to bring it into the case in a proper way and put the other side on proper notice of it.

The concept of a fourth trial of a person on the self same charges as those that were the subject of the first three is a matter of grave concern to me. I note that in D.S., already cited, Denham J. held that:

      “… a longstanding practice that two full trials ending in disagreement by a jury may be a circumstance in which a further trial may not be commenced may be a sound basis from which to review all the circumstances. Such a convention has inherent wisdom.”
Here, one is dealing with not a disagreement of a jury following a full trial but with a discharge of a jury by the learned trial judge. In my view, this Court must proceed on the basis that the learned trial judge’s decision to discharge the jury was the correct decision. If there is thought to be any suggestion, either in the judgments of my colleagues or in the judgment of the learned High Court Judge, that the evidence the complainant gave may in fact have been admissible, or at least may not have been such as required a discharge of the jury, I wish, with great respect, to say that I do not agree with any such suggestion. This case was not made in the Statement of Opposition on behalf of the Director. The Court has not been furnished with the transcripts of the trials, and neither (we were informed) was the High Court. I would not be prepared to conclude, without full argument in a case where the matter was relevant, that the basis on which the learned trial judge discharged the successive juries was incorrect in law.

But I could not assent to the proposition, which is the appellant’s sole proposition on the pleadings in this case, that a fourth trial, that is the giving in charge of the appellant to a jury “to try and inquire whether he is guilty or not guilty” is in and of itself, and in all circumstances an abuse of process. There may be many circumstances, perhaps extremely rare, where such a trial might be justified: perhaps in the face of repeated interference with witnesses or jurors. But I am of the opinion that the circumstances that could justify a fourth trial, whether after discharge or after disagreement, must be extremely rare and require to be fully established and explained by the Director. I regret that, on the hearing of this appeal, counsel for the Director was not instructed as to whether, and if so how often, any person had been put on a trial on a fourth occasion on the self-same charges, in Ireland since 1922.

There is another feature in the case on which would be unrealistic not to comment. The Book of Evidence, which has been exhibited before us, contains allegations by gardaí that the appellant made significant admissions when interviewed by them. The Court was told these admissions were duly recorded on video tape: I would have no regard to them if they were not.

Mr. Counihan S.C. urged us not to have regard to these alleged admissions because they had not been proved, as yet at least, at any trial. In my view this is too nice a distinction. This Court is not engaged in the criminal trial of the appellant but in a civil proceeding in which the appellant asserts that it would be an abuse of process to put him on trial again and that there is at least a real risk that such a trial would be unfair. The presence of the alleged admissions is not irrelevant to the question of fairness. In the pleadings and affidavits in this case, the appellant has not engaged with the allegation of the admissions in any serious way and in my opinion the onus was on him to do so.

I would dismiss the appeal.


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