The Supreme Court dismissed the Director of Public Prosecutions’ appeal and prohibited a third trial of D.S. on two remaining sexual assault counts relating to S.L. The Court said double jeopardy did not apply because the earlier juries had not returned verdicts on those counts. It nevertheless found that, considering all the circumstances together, another trial would be oppressive and unfair.
The charges concerned alleged sexual assaults between 1994 and 1997. The indictment was split into separate trials for two complainants. In proceedings relating to T.L., a jury was discharged during the first trial, and a later jury acquitted D.S. In the separate proceedings relating to S.L., the first jury disagreed. At the second trial, in March 2004, the jury acquitted D.S. on count three but could not reach verdicts on counts one and two. The proposed third trial concerned those two counts.
The High Court had restrained the DPP from taking further steps in the prosecution, reasoning that a third trial after two jury disagreements fell foul of double jeopardy and would not be a trial in due course of law. On appeal, the Supreme Court rejected that reasoning on double jeopardy. Justice Denham explained that the common law pleas of autrefois acquit and autrefois convict depend on a prior acquittal or conviction; neither applied to counts on which there had been no final verdict.
The Court also rejected a fixed rule limiting prosecutions to two trials. It said the number of trials must be considered case by case, and that a third trial is not automatically unconstitutional. The relevant test was whether there was a real risk of an unfair trial. The Court noted that two full trials ending in jury disagreement could be a relevant circumstance, but did not establish an absolute limit.
In assessing this case, the Court considered the years the proceedings had been before the courts, the impact of the ongoing case on D.S. and his family, the family conflict, and the repeated trials. It also noted that there appeared to be no change in the evidence proposed for a third trial. No single factor was enough on its own to prohibit the trial. Taken cumulatively, however, the circumstances made a further prosecution oppressive and unfair.
Although the DPP succeeded on several grounds of appeal, the Supreme Court dismissed the appeal in the interests of justice. The order prohibiting the third trial on S.L.’s complaint therefore remained in place.