O'C (J) v DPP

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Michael Peart
Judgment Date08 October 2002
Neutral Citation[2002] IEHC 151
Date08 October 2002

[2002] IEHC 151

THE HIGH COURT

No. 2001/282 JR
O'C (J) v. DPP

BETWEEN

J O'C
APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT

Citations:

CRIMINAL LUNATICS ACT 1800 S2

APPLICATION OF MICHAEL WOODS, RE 1970 IR 154

RYAN & MAGEE THE IRISH CRIMINAL PROCESS 1983 269

O'CONNELL, STATE V FAWSITT 1986 IR 362

Synopsis:

JUDICIAL REVIEW

Prohibition

Criminal law - Fair procedures - Constitutional law - Right to fair trial - Delay -Alzheimer's disease - Res judicata - Whether ill-health grounds for prohibiting trial - Whether order of prohibition restraining trial should issue - Whether real risk of unfair trial (2001/282JR - Peart J - 8/10/02)

O'C v Director of Public Prosecutions

Facts: The applicant sought an order of prohibition to restrain his trial on the grounds of ill-health. The applicant claimed that he was suffering from the onset of Alzheimer's disease which would prejudice his ability to defend himself. The applicant had previously been granted an order of prohibition by the High Court preventing his trial from proceeding. This order had been overturned by the Supreme Court which ordered that the trial should proceed. The present application was opposed by the Director of Public Prosecutions ("the DPP") who contended that the issue of whether the applicant should face trial had already been decided and was res judicata. In addition it was contended that whether the applicant was fit to stand trial was a matter for the trial judge to adjudicate upon under section 2 of the Criminal Lunatics Act, 1800.

Held by Peart J in granting the order of prohibition sought. The ground now adduced by the applicant for the prohibition of his trial was an entirely new ground of ill-health and therefore could be the subject of a new application. The applicant was suffering from Alzheimer's disease which would prevent the applicant from properly instructing his legal team. There was a real and substantial risk that if the applicant was to face trial he could not have a fair trial. This consideration outweighed the complaint's and society's right to have persons accused of offences brought to trial. The respondent would be restrained from further prosecution of the offences in question.

1

JUDGMENT of Mr. Justice Michael Peart delivered the 8th day of October 2002 .

2

By order of this Court dated the 30 th of April 2001, Mr. Justice Barr granted to the applicant leave to apply by way of application for judicial review for the following reliefs:-

3

(i) An order of prohibition by way of judicial review restraining the Respondent herein from proceeding with the further prosecution of the charges herein;

4

(ii) In the alternative, an injunction by way of Judicial Review restraining the Respondent from proceeding with the further prosecution of the said charges.

5

The grounds upon which this relief is sought are those set out at paragraph E of the applicant's Statement Grounding Application for Judicial Review (as amended by order of Barr J. dated 30 thApril 2001) as follows:

6

(i) The further prosecution of the charges herein would be contrary to natural and constitutional justice in that the offences charged are alleged to have occurred between 1974 and 1978 and the applicant has been diagnosed as suffering from early Alzheimer's disease which prejudices his ability to fully and properly defend himself.

7

(ii) There is a real and substantial risk that any trial of the applicant will be unfair having regard to the time at which the alleged offences occurred and the medical condition of the applicant.

8

(iii) The applicant has been prejudiced in his defence of the charges by reason of the fact that he suffers from early Alzheimer's disease which restricts his ability to properly and fully defend himself, which condition he would not be suffering from if the prosecution had been brought in good time.

9

This application is grounded upon an affidavit of the applicant's solicitor, Liam Guidera sworn the 27 th April 2001 and the exhibits referred to therein, and the affidavit of Joyce Pickett sworn the 27 th April 2001 and the exhibits referred to therein, she being a Consultant Psychiatrist attached to St. Ita's Hospital. Portrane who specialises in geriatric psychiatry. These affidavits support the applicant's contention that, as a result of the fact that in November/December 2000, a CT scan for the first time has shown what are described as atrophic changes, i.e. brain shrinkage, which are stated to indicate the onset and existence of early Alzheimer's disease. In addition, certain blood tests were carried out which, though described as "essentially normal". nevertheless did show a low vitamin B12 level which could contribute to memory loss.

10

Mr. Guidera's affidavit states that on the 2 nd November 2000, the applicant had been present with members of his family at a consultation with Mr. Guidera and with both senior and junior counsel, where the applicant appeared to be confused in his recollection of many details, and appeared to be unable to marshal facts to support and explain what recollection of relevant events he had, and that when the applicant gave answers to questions put to him, he was unable to give any cogent reason to explain or justify the answer. Mr. Guidera and counsel decided to terminate the consultation in order to give the applicant an opportunity to clarify his recollections and to prepare in advance for a further consultation.

11

As deposed to by Mr. Guidera, a further consultation was arranged for two weeks later on the 16 th November 2000, but that on this occasion the applicant seemed even more confused than on the previous occasion. It was as a result of this experience that the applicant's legal advisors sought medical reports from the applicant's general practitioner, Dr. Grennan who in due course referred the applicant to Dr. Joyce Pickett, consultant psychiatrist, as they thought there might be some medical condition giving rise to the applicant's inability to answer questions, and give cogent reasons for his answers, if any.

12

The applicant's submission is that as a result of the fact that he has now been clinically diagnosed as suffering from the onset of early Alzheimer's disease, he is unable to fully and properly defend himself, and that there is accordingly a real and substantial risk that any trial of the offences with which the applicant is charged would be unfair having regard to the time at which the offences are alleged to have been committed, that is, between the 20 th October 1974 and the 20 th October 1978, and the applicant's medical condition.

13

The Respondent, in opposing the applicant's application does so on two grounds:

14

(i) That the issue as to whether the applicant can have a fair trial of the offences alleged against him, having regard to the time at which the alleged offences occurred, has already been determined by the Supreme Court in an earlier application for similar relief in proceedings bearing Record No. 1998 No. 64 JR, and that the applicant is bound by that determination; and

15

(ii) That the issue as to whether or not the applicant is fit to plead is a matter for the trial judge in the due course.

16

At this point it is worth noting that the Respondent also arranged for an examination of the applicant to be carried out on its behalf by Mr. Paul McCarthy, consultant psychiatrist. A copy of that report is contained at exhibit D of the said affidavit of Liam Guidera. In this report, Mr. McCarthy, having "noted specially the atrophic brain deterioration that had been shown in the CT scan", concludes as follows:

"although past memories are retained, and although he can reason quite well during conversation, the evidence would seem to be increasing that, not only is his capacity for recent memory declining significantly, but that he can become distressed and confused when under pressure. His contentment in his retirement has been largely destroyed by the allegations which he totally denies. His resultant chronic anxiety state has certainly been unhelpful in his coping with his early dementia, but whatever the understanding, I would have little doubt but that his condition would place him in an unfair position in a courtroom scene. He could have full understanding beforehand, but would very likely become genuinely confused under cross-examination."

17

It is clear from these conclusions by the Respondent's own medical advisor in relation to the plaintiff that there is no dispute between the parties as to the applicant's medical condition (i.e. early Alzheimer's disease), and as to the difficulties which this poses and will continue to pose for the applicant, perhaps even to an increasing extent, in relation to any trial in the future. The Respondent's opposition to the application is based, not on any contest as to the medical evidence or what flows from it, but rather on the grounds already stated, namely that this matter has already been decided by the Supreme Court against the applicant and that it is therefore "res judicata", and also that the matter should be left to the trial judge who can deal with the matter at trial as to the applicant's "fitness to plead", in the normal way under section 2 of the Criminal Lunatics Act 1800, and where so found by a jury to be unfit to plead, to be detained in the Central Mental Hospital at the pleasure of the Government.

18

Before dealing in greater detail with the evidence in the present application, and the submissions made by both parties, it is necessary to understand what was decided in the earlier proceedings by the Supreme Court already referred to, particularly in view of the second plank of the Respondent's argument, namely that the question as to whether the applicant can have a fair trial is already decided and cannot be reopened.

19

In those proceedings the applicant sought an order by way of...

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