The Supreme Court has dismissed an appeal by the Judges of the Cork Circuit and the Director of Public Prosecutions, affirming an order that barred a third trial of an anonymised applicant on two remaining sexual assault charges. The court said the prohibition rested on abuse of discretion and fair procedures, not double jeopardy.
The applicant had faced six charges concerning two complainants, identified in the judgment as TL and SL. He was acquitted of all charges relating to TL. In the separate case concerning SL, a jury disagreed on all counts at the first trial. At a retrial, the jury acquitted him on count 3 but disagreed on counts 1 and 2. The DPP proposed trying him again on those two counts.
The High Court barred that further trial in October 2006. The respondents appealed. In a judgment delivered on 10 June 2008, Supreme Court judge Kearns J. dismissed the appeal and affirmed the order, though on different grounds from the High Court.
Kearns J. rejected the argument that double jeopardy alone prevented another trial. The applicant had not been convicted or acquitted on the two charges still at issue, and there had been no jury determination on them. He remained in “continuing jeopardy”, the judgment said.
The court nevertheless held that repeated trials could reach a point where another prosecution would be oppressive, an abuse of the DPP’s discretion or unfair under constitutional and Convention protections. It rejected a fixed rule that two jury disagreements always bar a third trial. Instead, the circumstances of each case should be assessed, including the seriousness of the offences, responsibility for earlier trial problems, delay and changes in the case. Ordinarily, the court said, two trials ending in jury disagreement adequately serve the public interest unless unusual facts point the other way.
The court noted that the first trial involving TL had collapsed because of a defence error, but said that case concerned different charges and a different complainant. It also referred to the lengthy proceedings and evidence of severe stress and damage to the applicant and his family. The judgment described the remaining charges as being at the less serious end of the spectrum and found no unusual or exceptional circumstances justifying a third trial.
The order stopping the proposed trial on counts 1 and 2 was therefore upheld. The Supreme Court did not determine those charges; the jury had not reached verdicts on them.