DPP v K.M.

JurisdictionIreland
JudgeMr. Justice Edwards.
Judgment Date13 October 2016
Neutral Citation[2016] IECA 283
Docket NumberRecord No 283/15
CourtCourt of Appeal (Ireland)
Date13 October 2016

[2016] IECA 283

THE COURT OF APPEAL

Edwards J.

Birmingham J.

Mahon J.

Edwards J.

Record No 283/15

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
V
K.M
Appellant

Conviction – Indecent assault – Error in law – Appellant seeking to appeal against conviction – Whether trial judge erred in law in failing to provide a warning to the jury on the dangers of convicting in the absence of corroboration

Facts: The appellant was convicted by a jury at Cork Circuit Criminal Court on the 25th of November, 2015 following a two day trial of a single count of indecently assaulting the complainant on the 23rd of December, 1989. The appellant appealed to the Court of Appeal against his conviction on two discrete grounds: 1) the trial judge erred in law or in a mixed question of law and fact in failing to accede to an application made by counsel for the appellant to discharge the jury in circumstances where evidence was adduced by the prosecutor which had no probative value and excessively prejudiced the appellant, namely in the adduction of evidence of the appellant's refusal to answer questions put to him when interviewed by members of An Garda Síochána pursuant to s. 4 of the Criminal Justice Act 1984; 2) the trial judge erred in law in failing to provide a warning to the jury on the dangers of convicting in the absence of corroboration.

Held by Edwards J that, having considered the first ground of appeal, there was nothing of self-incrimination involved and no infringement of any right to silence, the appellant having expressly elected not to maintain silence but rather to present a statement on which he intended to rely; consonant with this, the defence had presented to the jury an accused who showed consistency in his account, providing the jury were prepared to accept it, between (i) the contents of his statement, (ii) his responses to the supplementary questions put to him at interview, and (iii) his testimony from the witness box. Edwards J found that the fact that the jury had ostensibly rejected the appellant's account was simply a hazard of the trial. Edwards J noted that the mere fact that they did so, in circumstances where there had been no disrespect for, or breach of, the appellant's right to silence, did not render the trial unsatisfactory or the verdict unsafe. Having considered the second ground of appeal, the Court was satisfied that in circumstances where (a) no explanation had been put forward for the failure to request a corroboration warning at the trial, and (b) the trial judge appeared in any event to have considered possibly giving one but ultimately decided, in an ostensibly valid exercise of his discretion that it was an inappropriate case in which to do so, that the essential justice of the case did not require the Court to intervene. Edwards J held that in those circumstances the reliance on The People (Director of Public Prosecutions) v Cronin (No 2) [2006] 4 IR 329 by the respondent, the DPP, was appropriate and legitimate.

Edwards J held that the appeal against conviction must be dismissed.

Appeal dismissed.

Judgment of the Court delivered 13th of October 2016 by Mr. Justice Edwards.
1

In this case the appellant was convicted by a jury at Cork Circuit Criminal Court on the 25th of November, 2015 following a two day trial of a single count of indecently assaulting one M.H., on the 23rd of December, 1989.

2

The appellant now appeals against his conviction on two discrete grounds.

The grounds of appeal
3

The grounds advanced on foot of which the appellant appeals against his conviction are as follows:-

'1. The trial judge erred in law or in a mixed question of law and fact in failing to accede to an application made by counsel for the appellant to discharge the jury in circumstances where evidence was adduced by the prosecutor which had no probative value and excessively prejudiced the appellant, namely in the adduction of evidence of the appellant's refusal to answer questions put to him when interviewed by members of an Garda Síochána pursuant to section 4 of the Criminal Justice Act, 1984.

2. The learned trial judge erred in law in failing to provide a warning to the jury on the dangers of convicting in the absence of corroboration.'

The first ground of appeal:
Relevant background.
4

In 1989, the appellant, a general practitioner, regularly attended the home of the complainant to treat the complainant's mother who was suffering from terminal cancer. The complainant alleged in evidence that during one of these visits, on the 23rd day of December, 1989, she was suffering from a head cold or flu and the appellant also attended on her in her bedroom. The complainant stated that during the course of the medical examination, the appellant proceeded to touch her vaginal area on the outside of her clothing for approximately five minutes. The complainant was 15 years old at this time. In the following months, the appellant continued to treat the complainant's mother until she passed away in early 1990. Thereafter, he remained the complainant's general practitioner until she left the family home to attend university some years later.

5

A complaint of indecent assault was made to the Gardaí on the 2nd day of October, 2010. The appellant was arrested in respect of the allegation on the 22nd June, 2011 and was questioned pursuant to s. 4 of the Criminal Justice Act 1984 (the Act of 1984). Early in the interview with which we are concerned, following some initial questions about the appellant's personal and professional circumstances which the appellant had answered readily, the appellant was then asked ' Dr [K.M.], can I ask you, do you recall a girl by the name of [M.H.] being a patient of yours?'

6

The appellant responded ' I have a statement here in relation to [M.H.]. Other than that I have nothing to say'. The appellant then handed his pre-prepared typed statement to the interviewing Gardaí, who then asked him to read it out, which he did, following which he signed it, and his signature was witnessed by the interviewing Gardaí then present.

7

The pre-prepared statement, which was placed before the jury at the trial, was in the following terms (with necessary redactions to preserve the complainant's anonymity):

'Statement re Ms M. H.. To my recollection, Ms M. H. attended me in or around the time of the death of her late mother. I do not have any medical records of her attendances as I do not keep retain medical records for patients which date in excess of 10 years and such records have been destroyed. Shortly after I established practice as a general practitioner I was contacted by Ms M. H.'s father to request I attend on his wife, Ms M. H.'s mother was at that time terminally ill with cancer. I attended on Mrs H. four or five times a week up to her death, in order to provide her with palliative care. I do not recall attending to Ms M. H. at her home during her mother's illness. So the best of my recollection, Ms M. H. attended on me at my surgery in [a named place] on a handful of occasions in or around the time of her Leaving Certificate exams. She may have attended on me at my surgery in [another named place] on one or two occasions but I cannot recall. I recall that her father brought her to my surgery in [a named place] after school and waited for her while she attended on me. To my recollection, I did not attend at Ms M. H.'s home after the death of her mother, other than to certify her late mother's death. I do not remember the medical complaint which resulted in Ms M. H.'s attendance by her as she did not attend on me more than a few occasions over a period of a few months. I cannot recall whether or not I prescribed any medication for MsM. H.. I do not recall her attending on me with any ongoing problem. Ms M. H. was a patient for a short period and not a patient of mine over the years whose medical history I would recall. Her attendances lasted for no longer than in or around 10 minutes or so and to my memory I only spoke with her for a brief period on each occasion. I do not recall carrying out any physical examination of Ms M. H. on any occasion. After Ms M. H.'s last attendance on me I did not hear anything about it her again until early last year, 2010, when I received a phone call on, as far as I remember, two occasions from her requesting advice in relation to her father who was ill. Her father was a patient of mine. I am deeply shocked and greatly distressed that a patient and indeed any person would make blatantly false and extremely damaging allegations against me which have very serious negative consequences for my professional reputation and to my personal integrity and such allegations have also caused extreme distress for my wife and my children.'

8

Following the signing of this statement, the interviewing Gardaí then asked a number of questions of the appellant, to which the following responses were received:

Q: 'On the 2nd of October 2010 M.H. made a written statement to Detective Garda Colman Murphy at Mallow Garda Station. In this statement M.H. states that she was a patient of yours from 89 to 92; is that correct?'

A: 'I've nothing to say, only what's written in my statement.'

Q: 'Would your wife [named] have accompanied you to M.H.'s house at [a specified address] and carried out reflexology on her mother before she died?'

A: 'I have nothing to say other than what's written in my statement.'

Q: 'M.H recalls a visit you had made to her home at [the specified address] two days before Christmas Eve in 1989. M.H states you had called to see her mother and that M.H had a sore throat or head cold. Do you recall that visit?'

A: 'I have nothing to say other than what's written in my statement.'

Q: 'M.H states that you examined her in her bedroom at [the specified address] on that day and I quote: "I recall K.M. examining my throat and...

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2 cases
  • Director of Public Prosecutions v M
    • Ireland
    • Supreme Court
    • 21 Marzo 2018
    ...the Court of Appeal was delivered on the 13th October, 2016, (see The People at the Suit of the Director of Public Prosecutions v. K.M. [2016] IECA 283). It is apparent from the judgment that the case made on behalf of the Director was that what had occurred did not offend against the right......
  • Director Public Prosecutions v K.M.
    • Ireland
    • Supreme Court
    • 20 Enero 2017
    ...the applicant's appeal against conviction was dismissed – see The People at the Suit of the Director of Public Prosecutions v. K.M. [2016] IECA 283. However, his appeal against sentence was successful to the extent that the sentence was reduced to twelve months to date from the 24th October......

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