Double jeopardy does not apply to a third trial, but justice requires prohibiting it due to cumulative oppression.

THE SUPREME COURT

[S.C. No: 417 of 2006]

Denham J.

Hardiman J.

Fennelly J.

Kearns J.

Finnegan J.

Between/

D.S.

Applicant/Respondent

and

The Judges of the Cork Circuit Court and The Director of Public Prosecutions

Respondents/Appellants

Judgment delivered the 10th day of June, 2008 by Denham J.

1. At issue in this appeal is the principle of double jeopardy. Also, at issue is whether a trial should proceed for a third time, or

whether it should be prohibited, where charges have twice previously been before a jury which each time failed to convict or acquit.

For the reasons I set out below I am satisfied that the principle of double jeopardy does not apply in this case.

However, as I explain in my judgment, I would prohibit a third trial, in all the circumstances of the case. Consequently I would dismiss

the appeal.

2. This is an appeal by the Director of Public Prosecutions, "the Director", from an order of the High Court (O'Neill J.) delivered on the

16th October, 2006, restraining the Director from taking any further step in the prosecution of D.S., the applicant/respondent, "the

applicant", in the Circuit Criminal Court, on charges of sexual assault between 1994 and 1997 on S.L.

3. Initially the applicant was charged with six counts of sexual assault, three charges relating to T.L. and three charges relating to

S.L. On the 6th November, 2002 the applicant applied successfully to sever the indictment and for separate trials in relation to each

complainant.

4. The trial of the charges relating to T.L. commenced on the 7th November, 2002. On the 8th November, 2002 the jury was

discharged. The applicant was retried on the T.L. charges on the 6th, 7th, 11th and 12th March, 2003. The jury acquitted the

applicant.

5. The first trial of the applicant on the charges relating to S.L. took place over the 3rd and 4th of July, 2003, and ended in a jury

disagreement. A retrial took place on the 2nd, 3rd and 4th March, 2004. This time the jury acquitted the applicant on count no. 3,

but the jury were unable to reach a verdict on count no. 1 and count no. 2.

6. The applicant has sought to injunct a third trial on counts no. 1 and no. 2, relating to S.L.

7. This application commenced on the 18th October, 2004 when the High Court (McKechnie J.) gave the applicant leave to apply for

judicial review for a permanent injunction restraining the Director from taking any further steps in prosecuting the applicant on the

remaining two counts.

8. The grounds upon which leave for judicial review was granted were:-

1. That the decision of the Director to retry the applicant by way of indictment at Cork Circuit Criminal Court where he

had previously been tried twice in respect of the same offence is a violation of the applicant's right to a fair trial pursuant

to Article 38 of the Constitution.

2. That a retrial of the applicant on the charges to which he had already been tried on two previous occasions violates

the applicant's right to a fair hearing pursuant to article 6 of the Convention for the Protection of Human Rights and

Fundamental Freedoms signed at Rome on the 4th day of November, 1950, and as adopted in this jurisdiction by the

Human Rights Act, 2003.

3. That a retrial of the applicant on the charges to which he had already been tried on two previous occasions is contrary

to a rule of practice of long standing.

4. That a retrial of the applicant on the charges to which he had already been tried on two previous occasions is

oppressive to the applicant and is an abuse of process.

5. That the applicant's right to the expeditious institution of criminal proceedings has been violated.

9. The application was at hearing before the High Court on the 14th and 15th June, 2006. On the 16th October, 2006 the learned

High Court judge ordered that the Director be restrained from taking any further steps in this prosecution pending against the

applicant.

10. The learned High Court judge applied the principle of double jeopardy and held that a trial would not be "in due course of law". He

stated:-

"It is undoubtedly the case that the problem confronted in the various cases which were opened to me was whether a

second trial was permissible. I have not seen any case in which there was a consideration of the problem posed by a third

trial for the same offence, save the Jamaica case; Flowers v. The Queen, in which the double jeopardy principle was not

raised.

In my 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 to two trials. In so doing in my view 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.

Beyond two such trials in my opinion, 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 in my opinion 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 in my view. 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.

It could not ever reasonably be said, in my view, 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 my view, 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. In my view, 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.

I have come to the conclusion therefore that the ancient common law prohibition on multiple trials known as the double

jeopardy principle has application to this case, although it might more aptly be described as the triple jeopardy principle.

It follows that a third trial of a person for the same offence where in the two previous trials a jury has disagreed, would

not in my opinion be a trial in due course of law as required by Article 38(1) of the Constitution."

11. From this judgment the Director of Public Prosecutions filed twelve grounds of appeal. These grounds are:-

i) The learned trial judge erred in granting the applicant the relief sought in the statement of grounds.

ii) The learned trial judge erred in granting an order restraining the further prosecution of the criminal charges against the

applicant.

iii) The learned trial judge erred in concluding that the correct balance between protecting the right of the public to a full

and fair opportunity to prosecute a criminal charge to a verdict by a jury and the need to guard against the obvious and

inherent dangers of repeat trials is correctly achieved by limiting the number of trials that may be had, which and in jury

disagreement, to two trials.

iv) The learned trial judge erred in concluding that it was for the Courts and not the Oireachtas to strike that balance.

v) The learned trial judge erred in concluding that a third trial of a person for the same offence where in the two previous

trials the jury had disagreed would not be a trial in due course of law as required by Article 38(1) of the Constitution.

vi) The learned trial judge erred in concluding that after two trials have been had, the risk of an innocent person being

convicted becomes unacceptable, such that a third trial should be restrained.

vii) The learned trial judge erred in concluding that it was irrelevant that the applicant sought the severance of the

indictment originally and was thus responsible for having at least two trials.

viii) The learned trial judge erred in concluding that the point at which there should be prohibition on a further trial is after

the public have had a full and fair opportunity to bring the case to a jury twice.

ix) The learned trial judge erred in concluding that where two juries in separate trials failed to reach a verdict, because of

a disagreement, the public interest in having criminal charges prosecuted all the way to a verdict by a jury has been

amply protected.

x) The learned trial judge erred in concluding that 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 risk 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.

xi) The learned trial judge erred in concluding that the ancient common law prohibition on multiple trials known as the

double jeopardy principle had application to the applicant's case herein.

xii) The learned trial judge erred in granting prohibition.

12. Written and oral submissions were made to the Court on behalf of the applicant and the Director.

13. There are a number of separate issues to be considered in this appeal.

14. Severance of the Indictment

The applicant sought and received an order of the trial court that there be separate trials in relation to the counts referring to each

complainant. That was his entitlement, and it must be assumed that the trial court made such an order in the interests of justice.

However, that being the case, and separate trials having been ordered, the separate trial and retrial in relation to another

complainant is not immediately relevant to the issue of the trial and retrial of the applicant on the indictment referring to complainant

S.L. If a court determines, where there are a multiplicity of complainants, that the trials should be severed, that may not then be

turned around and used as an argument that because there are a series of trials, for a series of complainants, that that is unjust to

an accused. Thus, for example, if an accused was before the courts on multiple complaints by, say, 4 complainants. If a trial court

ordered that there be separate trials in relation to each of the complainants, that per se, may not be a basis upon which to restrict

the trials coming at the end of the list. Severance is a tool utilised by a court to protect a fair trial. That tool may not then be

twisted by an accused from a shield for him in trial, to a sword prohibiting later trials. Each situation requires to be considered in all

the circumstances of the case. Each trial, or series of trials, in relation to a complainant, should be assessed individually. This does

not, of course, exclude the jurisdiction of a court to prohibit a trial when there is a real risk of an unfair trial.

It was a ground of appeal that the learned trial judge erred in concluding that the applicant sought the severance of the indictment

originally and was thus responsible for having at least two trials. This is a process followed to achieve a fair trial and consequently

part of the integrity of the criminal justice system.

15. Absolute rule as to the number of trials

The Oireachtas has not legislated as to the number of times a person may be tried on an indictment. Consequently as there is no

statutory law on this issue, there is no statutory limit on the number of times a person may be prosecuted. A decision is required to

be made in each case, depending on all the circumstances, involving the exercise of a discretion.

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.

First, there may be issues as to witnesses, their availability, and their statements. Secondly, there may be issues as to an earlier

prosecution. Thus, the stage at which a first trial was reached is important. Did it fail before the trial commenced? Did it fail shortly

after the trial commenced? Why? Was it due to the illness of jurors? Was something said before a jury which should not have been?

Was there a disagreement? Obviously a situation where a trial was stopped early in the process, because of something such as the

illness or absence of a juror, is entirely different to a situation where there has been a full trial but the jury could not reach a

decision. Each situation requires to be considered in all the circumstances of the case. It is quintessentially a matter for the exercise

of a discretion, and not for a hard and fast rule as to the number of prosecutions which may be brought.

A rule limiting the number of trials to two would be a form of legislation, which may be done only by the Oireachtas. It is not for a

court of law to make such a rule. Consequently I would uphold the Director's ground of appeal that the learned trial judge erred in

limiting the number of trials which may be brought, which end in jury disagreements, to two trials. I would respectfully disagree with

the learned trial judge's conclusion that it was for the courts and not the Oireachtas to strike that balance. Whether or not a third

trial for the same offence is a trial contrary to Article 38(1) of the Constitution is a matter to be determined in all the circumstances

of the case.

16. Double Jeopardy

The High Court stated that the first question to be addressed was whether the common law prohibition on double jeopardy had any

application to the circumstances of this case. Having reviewed certain matters, the learned High Court judge held:-

"I have come to the conclusion therefore that the ancient common law prohibition on multiple trials known as the double

jeopardy principle has application to this case, although it might more aptly be described as the triple jeopardy principle.

It follows that a third trial of a person for the same offence where in the two previous trials a jury has disagreed, would

not in my opinion be a trial in due course of law as required by Article 38(1) of the Constitution."

With great respect I would disagree with the learned trial judge's finding that the double jeopardy principle has any application to this

case. The concept of double jeopardy is built on the principles of autre fois convict and autre fois acquit. These terms refer to a

situation where there has been a prior conviction or a prior acquittal.

Autre fois convict refers to a situation where an accused was formerly convicted of the crime in issue. It enables a plea, and a

decision if true, that he has already been tried and convicted of the same offence before a court. An accused may not be retried for

an offence for which he has already been tried and convicted, and he may not be put in jeopardy of such a trial.

Autre fois acquit refers to a situation where an accused was previously acquitted of the crime in issue. Similarly, an accused may not

be retried for an offence for which he has already been tried and acquitted, and he may not be put in jeopardy of such an

occurrence.

Neither principle applies to this case. The applicant has neither been acquitted nor convicted of the offences in issue. There was no

final verdict in the previous trials.

The principle was recently described in Registrar of Companies v. Anderson [2005] 1 I.R. 21 at p.26, where Murray C.J. stated:-

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

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

jeopardy. It is a rule which applies to the prosecution of criminal offences. The rule, or what also might be called the

notion, of double jeopardy is not normally relied upon in express terms in the sense that if a person is prosecuted for an

offence arising out of the same breach of the law or the same essential ingredients for which he has previously been tried

and either convicted or acquitted, his defence to the second prosecution will be based on the pleas of autrefois acquit or

autrefois convict. If either plea is successful the prosecution may proceed no further."

Consequently the double jeopardy principle does not apply to the circumstances of this case. I would uphold the Director's ground of

appeal on this issue, and find that the learned trial judge erred in concluding that the ancient common law prohibition on multiple trials

known as the double jeopardy principle had application to this case. A re-trial is not prohibited on this basis.

17. Trial in due course of law

However, the fact that the double jeopardy principle has no application does not conclude the matter. The process, the multiplicity of

trials, may be reviewed by the Court to determine whether there has been an unfairness, in all the circumstances, so as to be

contrary to trial in due course of law under the Constitution. This approach pursuant to the Constitution was referred to by Henchy J.

in The People (D.P.P.) v. Quilligan (No.2) [1989] I.R. 45 at p.57, where he stated, referring to the rule of double jeopardy:-

"The rule of autrefois acquit means that if an accused duly and successfully raises the plea that he has already been tried

in a court of competent jurisdiction, acting within jurisdiction, for the offence now charged, and that he was acquitted of

that charge in that court, the second trial for that offence may not take place. This rule (or principle), which is

sometimes referred to as the rule against double jeopardy, is but an aspect of the canon of fundamental fairness of legal

procedures, inherent in our Constitution, which is expressed in the maxim nemo debet bis vexari pro eadem causa."

In such an analysis there is no firm rule as to the number of potential trials. In each case all the circumstances require to be

considered.

However, a long standing 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.

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.

The Court's duty is to protect due process. The test to be applied is whether there is real risk of an unfair trial. As Finlay C.J. stated

in Z. v. Director of Public Prosecutions [1994] 2 I.R. 476, at p.506:-

"This Court in the recent case of D. v. Director of Public Prosecutions 2 I.R. 465 unanimously laid down the general

principle that the onus of proof which is on an accused person who seeks an order 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."

In each case there should be a balance sought between competing public interests. While protecting the public interest in prosecuting

an accused, the integrity of the trial process also requires protection, guarding against the inherent dangers of repeat trials. A third

trial may not per se be a breach of a trial in due course of law. All the facts of each case require to be considered.

18. Facts

The particular facts of each case are critical. The facts of this case are set out in affidavits and there was no cross examination.

There was very little disagreement as to the facts, and none on the central issue of the sequence of trials. These facts establish the

circumstances of the case.

The applicant was first returned to Cork Circuit Criminal Court on the 30th October, 2002. The matter was adjourned to the 6th

November, 2002 when it was listed for trial. On that date the applicant brought an application to sever the indictment, which was

acceded to by the learned trial judge.

On the 7th November, 2002 the trial commenced, relating to the complainant T.L. On the 8th November, 2002 the trial judge of his

own motion discharged the jury. The trial was adjourned to 11th February, 2003, to the list to fix dates. The trial was listed for 6th

March, 2003. On that date a jury was sworn for the trial, which proceeded on the 6th, 7th, 10th, 11th and 12th March, 2003. The

applicant gave evidence in his defence. The jury reached a verdict of not guilty.

On the 7th May, 2003 the applicant appeared before the trial court in respect of the indictment relating to S.L. - the counts relevant

to this judicial review. The matter was listed for trial on the 21st May, 2003. On that date the trial was adjourned for mention on 19th

June, 2003. On the 19th June, 2003 the applicant appeared in court and his trial was listed for 3rd July, 2003. On the 3rd July, 2003

the applicant was arraigned and he pleaded not guilty. The case was heard by a judge and jury on 3rd and 4th July, 2003, and the

applicant gave evidence in his defence. On the 4th July, 2003 the jury were unable to reach a verdict owing to a disagreement and

the judge discharged the jury.

The trial of the applicant was adjourned for mention to the 21st October, 2003, when it was further adjourned for mention to the

17th November, 2003 for the purpose of fixing a trial date. On the 17th November, 2003 the trial was adjourned to the 17th February,

2004 for mention. On the 17th February, 2004 the applicant appeared in court and a trial date was set for 2nd March, 2004. On the

2nd March, 2004 the applicant was arraigned and pleaded not guilty. The trial of the applicant proceeded on the 2nd, 3rd and 4th

March, 2004. The applicant gave evidence in his defence. At the conclusion of the trial the jury acquitted the applicant on count no.

3 and were unable to reach a verdict, owing to a disagreement, on the remaining counts, count no. 1 and count no. 2.

The matter was adjourned to the 19th October, 2004, for mention, for the purposes of fixing a date for the third trial. The applicant

was returned for trial. At all material times the applicant has remained on bail.

The applicant's solicitor deposed that he was advised by the applicant that the continuing retrials caused hardship to the applicant

and his family. The applicant is married with three children. The applicant's solicitor deposed that he was advised by the applicant

that as a consequence of the stress of the ongoing trials his eldest daughter did poorly in her Leaving Certificate examination and

that his wife has become anxious and depressed and is taking antidepressant medication. Medical reports were exhibited from a

Consultant Psychiatrist relating to the applicant, and from a General Practitioner in relation to the children and the family.

The latter report, dated the 5th July, 2004, stated that the youngest child, born in 1993, expresses fears of her father going to jail, is

nervous in school and feels people are talking about her. She refused to attend school when the court cases were proceeding. The

middle child, a boy born in 1988, has become withdrawn and quiet, and he has lost weight. After the last court case he cried when he

knew his father was not going to jail. The eldest child, born in 1985, has experienced verbal abuse at school, it was reported by the

doctor, and is afraid of meeting cousins in town. The G.P. concluded with the observation that the applicant had at that time lived

with the matter for three years, worrying about the case, and the immense trauma it is causing the children. They have found it

difficult to socialise and the applicant was asked to leave his position as a trainer in a local sports club.

The Consultant Psychiatrist's report is dated 17th September, 2004. He consulted with the G.P. prior to examining the applicant. Inter

alia in his report, he stated, that the applicant having been a relaxed sociable man, had changed:-

"These changes are due to the nature of the charges made against him, their effects on important members of his family

and also because the two girls that he is alleged to have injured are in fact daughters of his wife's brothers i.e. his wife's

nieces.

This has been very hard on his wife because she and her brothers are now alienated. In addition to the fact that she has

to cope with the charges made against him and has had to do so and it is clear from his account that she became very

anxious and depressed. She has been taking a named anti-depressant drug and he told me the name of it and tried to

stop it this year but began to get a good deal worse when she did and had to go back on it. She is still taking it and with

it she can cope with life but she is still miserable enough though there are times when she can enjoy herself now.

However, in all probability without the drugs she would be miserable all the time.

He is also worried about his three children.

Firstly, there is the eldest daughter who has just got her Leaving Cert. and is going to undertake a course in sports

injuries in … … She got her Leaving Cert. but not the one they would have expected of her several years ago. He said

that she was subjected to abuse at school by some girls who asked her questions such as 'When did her father last rape

somebody?' and this upset her greatly. However, with the help of her friends she got over most of this. At the same time

he said that she had a great interest in reading and she was great to study. He noticed that she stopped reading and her

ambitions and interest in studying also decreased. He believes that she took the course she chose partly because it had

very little low points and she didn't expect to do well in her Leaving Cert. whereas before she would have. Nonetheless,

he is glad that her original emotional distress has eased and he thinks that some day she will recover her ambitions. His

account fitted that given to me by Dr. O'Neill.

He spoke about his son and how he was very upset, didn't want to go out, got quite scared that his father was going to

jail and lost weight, which indicates to me that his son may have been and probably was depressed. His son wanted to

give up hurling, which he is very fond of but his parents insisted that he keep at it and this was good because he has got

very involved in it, it distracts him and keeps him going and he is better now than he was.

Finally, he told me that his youngest daughter tends to cling to him and becomes disturbed and upset if he is away in an

unexpected fashion for any length of time.

So the condition of his wife and three children are all upsetting him.

So also is the prospect of further court hearings but the matter that upsets him most is that of his mother who has died

from leukaemia. He was very close to his mother who was very supportive of him including throughout the court hearings.

Shortly after the last court hearing she looked very healthy and was very active doing a lot of walking and so on.

Suddenly she became very tired and feeble, was admitted to hospital and died within a couple of days from a previously

undiagnosed leukaemia. She had a hip replacement only a few months previously and had blood tests taken before and

afterwards and they showed no trace of leukaemia, so it developed very suddenly. He now believes that the stress she

developed as a result of all of this caused her leukaemia and her death. When he told me this he became exceedingly

distressed and cried in a helpless fashion.

He was unable to believe my assurance that stress does not cause leukaemia although there was a possibility that it

could make it worse or cause it to develop very quickly. However, some cases of leukaemia do come on like this did

without stress. It sticks in his mind that her death from leukaemia was due to stress and it is going to take a long time for

this to go out of his mind even if he goes for help. In fact, he could carry this until he dies.

Furthermore, I suspect even though he denied it that he may be blaming himself for involving his mother in so much

stress, certainly whether he is or not his distress at what he sees as the link between all that is going on and his mother's

death is overwhelming.

Apart from this his level of functioning varies. When first charged he became very distressed, he told the GAA, stopped

refereeing football matches though the GAA would have stopped him in any event. He found it very hard to work, lost

interest, energy and enjoyment and didn't sleep. He missed work at times and worked very badly at other times. But his

friend carried him through and gradually he improved out of this. He didn't go to see any doctor. In fact he has never

gone to see a doctor except to see Dr. O'Neill and I think this was on Mr ….'s instigation. He is the kind of man who

carries on particularly where emotional things are concerned.

After he was acquitted in the case of the first girl he applied and was allowed to referee matches again and he is now

doing this. He and his wife have resumed going out socially. However, they do not go out as often as they did previously

and sometimes they don't enjoy themselves and return home. They also are more limited in where they go.

However, they had just been [to see] the hurling championship and there is one pub there that they go out to about

once a week where they have friends and they are reasonably content most of the time. So in someways they are better

except for the way he feels about his mother and his wife feels about the ongoing problems but they are coping a bit

better but with difficulty.

However, under the surface he is still very tense apart altogether from his reaction to his mother's death as described.

I think it was over a year ago he and his wife went [out] to try and cheer themselves up. They think that their pub was

involved in some type of dart competition. He didn't have much to drink but when he returned to the hotel room he went

berserk and broke the furniture and people came running and got into the room for fear that his wife was in danger which

she wasn't. He doesn't remember anything of this just what he has been told.

This is a sign of major stress that he is in and which he tries to cover under a veil of "Hail fellow well met surface". Things

like that don't just happen except people are deeply disturbed.

He would in fact be fit to plead in further court hearings. But in my opinion they are very likely to increase the intensity of

his present stress including extreme stress he feels about his mother's death, which is interfering with his capacity to

grieve her and come to terms with it. As well as causing him further distress not just because of his fears of its outcome

but because it is likely also to increase the stress on his wife and children thereby adding to his stress."

19. Decision

There are a number of factors relevant in all the circumstances of this case.

First, the issue of double jeopardy: for the reasons given earlier in this judgment, the principle of double jeopardy has no application

to this case. Consequently it is not a ground upon which to prohibit a trial.

Secondly, is the issue of delay. The charges relate to events between 1994 and 1997. The applicant was charged and first returned

to Court in 2002. He was first tried in 2003, and the retrial was in 2004. There is no issue of prosecutorial delay.

In 2004 the applicant obtained leave to judicially review the decision of the Director to prosecute for a third time. The delay between

2004 and 2008 arose because of the choice of the applicant to seek judicial review. It means that any trial now is four further years

delayed. Consequently, the fact is that this trial has now been before the courts, in one proceedings or another, for six years.

Thirdly, the issue of severance of the trials is not per se a ground which the applicant may now wield as a sword to prohibit his trial.

However, it is a factor in all the circumstances of the cases.

Fourthly, the stress and anxiety of the applicant is a factor. However, of itself it is not such as to prohibit his trial.

Fifthly, the stress and anxiety of his wife and children are factors. However, it is unfortunately true that families of an accused may

suffer anxiety and stress to varying degrees when their loved one is on trial. Imprisonment, or fear of imprisonment, may affect deeply

the family of an accused.

Sixthly, in the analysis of the situation the position of the victim should not be overlooked. This has an added poignancy when she is

a member of the wider family, and when family rifts have occurred because of the charges. Also, it is a part of the matrix of facts in

this case that the trials of the applicant on the complaint of the other complainant, also a family member, concluded in an acquittal.

Consequently the family has been fraught with conflict for years.

Seventhly, there appears to be no change in the evidence to be offered at the third trial. It is similar to that of the two previous

trials. Each subsequent trial becomes more oppressive and requires to be assessed objectively. A factor in this analysis is that there

were two similar trials previously in relation to a different complainant, so taking a general view this would be a fifth trial.

Eighthly, a court should exercise its discretion to prohibit a trial with caution, given that the power to make a decision to prosecute

has been given to the Director, by the Oireachtas, and no legislation prohibits more than two trials.

Ninthly, however, the Court has a duty to protect due process. This duty may not arise initially, when the Director has decided to

prosecute. I would distinguish State (McCormack) v. Curran [1987] ILRM 225. However, it will arise where the Court is reviewing the

fairness of procedures and due process in circumstances where proceedings have been ongoing for years.

In this case no individual factor is such that of itself it would be a ground upon which to prohibit the trial of the applicant. However,

having considered the grounds individually it is also appropriate to consider them cumulatively, as the ultimate decision should be

proportionate, relate to the process as a whole, and to the fairness of the procedures. The Court is required to exercise a supervisory

role, and to take into account all the circumstances of the case, which have been set out above in the judgment.

Bearing in mind all of the circumstances of the case, I am satisfied that it would be oppressive and unfair to prosecute a further trial

in this case. In the interests of justice I would prohibit the third trial based on the complaint of S.L. Thus, while I have found for the

Director on several of the grounds of appeal, in the interests of justice I would dismiss the appeal.

Conclusion

While the Director has succeeded on this appeal on a number of grounds, I am satisfied that the appeal should be dismissed and the

third trial of the applicant on this complainant's complaint be prohibited, for the reasons given.