The Supreme Court allowed Janine Cleary’s appeal against the refusal of judicial review, with the majority holding that the Director of Public Prosecutions could not proceed with a renewed prosecution after the District Court dismissed the complaint against her. O’Donnell J dissented.
The case arose from an alleged assault in a Dublin nightclub on 31 May 2005. The injured woman suffered a facial wound requiring 25 stitches and was left with a permanent scar. Cleary was later charged with assault under section 3 of the Non-Fatal Offences Against the Person Act 1997.
On 7 March 2008, Cleary attended the District Court with her witnesses, but no prosecutor or prosecution witness appeared. The prosecuting garda had mistakenly entered a different hearing date in his diary. Cleary’s counsel asked the District Court to dismiss the case, and the judge did so. The written order, made months later, said the complaint was dismissed. The hearing record available to the Supreme Court was limited.
The DPP’s office concluded that the dismissal was not on the merits and did not prevent another prosecution. It directed that a prosecution be brought in the Circuit Court, citing the seriousness of the injuries. The applicant challenged that decision by judicial review, arguing that the District Court dismissal amounted to an acquittal and that a second prosecution would breach the rule against double jeopardy.
The High Court rejected the challenge, treating the District Court dismissal as one made without prejudice under the District Court Rules. Cleary appealed. The Supreme Court considered whether the earlier proceedings had placed her in jeopardy in a way that barred a later trial.
O’Donnell J, in the dissenting judgment, considered that because the prosecution had not appeared, Cleary was not at risk of conviction and had not been tried on the merits. He would have allowed the further prosecution to proceed. He also considered whether it would be unfair to allow a trial, but found no basis to prohibit it, given the unchallenged evidence that the decision to proceed in the Circuit Court was made on the merits and not to gain a tactical advantage.
The majority reached the opposite result and allowed the appeal. The judgment supplied does not include the majority’s reasons or the precise terms of the order. It therefore establishes that the appeal succeeded, but this extract alone does not specify the legal basis or any limits attached to the majority’s decision.