DPP v M.S.

• Jurisdiction: Ireland
• Judge: Ms. Justice Kennedy
• Judgment Date: 10 April 2019
• Neutral Citation: [2019] IECA 120
• Court: Court of Appeal (Ireland)
• Docket Number: [258/2017]
• Date: 10 April 2019

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

AND

M.S.

APPELLANT

[2019] IECA 120

Kennedy J.

Peart J.

Edwards J.

Kennedy J.

[258/2017]

THE COURT OF APPEAL

Conviction – Indecent assault – Charge to jury – Appellant seeking to appeal against conviction – Whether the trial judge erred in law and in principle when charging the jury that they were to disregard the evidence of the complainant

Facts: The appellant, at the commencement of the trial before the Circuit Criminal Court, faced eight counts of indecent assault contrary to common law concerning allegations in respect of six complainants. At the conclusion of the prosecution case, the trial judge directed an acquittal on one count of indecent assault and on the 2nd November 2017, the appellant was convicted of three counts of indecent assault concerning two complainants. The appellant was acquitted by the jury of the remaining four counts on the indictment which concerned three complainants. He was sentenced on December 1st 2017 to a sentence of 20 months’ imprisonment. The appellant appealed to the Court of Appeal against conviction.

Held by the Court that the material which counsel for the appellant relied upon in the course of his closing address to the jury was relevant evidence which counsel sought to use in order to emphasise a particular point. In the circumstances, the Court was satisfied that it would have been appropriate for the trial judge, after counsel for the appellant had raised the issue in the course of his closing speech, to direct the jury that the evidence concerning the second complainant could not be used by them as part of evidence of system but should not have instructed the jury to disregard the evidence completely. In that respect, the Court was satisfied that the trial judge fell into error. In light of the fact that the Court had found an error in the trial judge’s charge to the jury, the question arose as to whether it ought to apply the proviso. The key issue in considering whether to apply the proviso was a consideration of the possibility that there had been a miscarriage of justice as a result of the identified error. In assessing whether this was so, the Court had regard to the evidence against the appellant. In the instance of the accounts in respect of which the jury returned verdicts of guilty, the Court was influenced by the fact that there were some medical records available from which the defence were in a position if so desired to use in cross-examination. The Court held that the very existence of some medical records defeated the contention that the trial judge’s direction adversely affected the appellant. The Court therefore upheld the conviction notwithstanding the identified error.

The Court held that the appeal would be dismissed.

Appeal dismissed.

Judgment of the Court delivered on the 10th day of April, 2019 by Ms. Justice Kennedy

1 This is an appeal against conviction. At the commencement of the trial before the Circuit Criminal Court, the appellant faced eight counts of indecent assault contrary to common law concerning allegations in respect of six complainants. At the conclusion of the prosecution case, the trial judge directed an acquittal on one count of indecent assault and on the 2nd November 2017, the appellant was convicted of three counts of indecent assault concerning two complainants, namely; M.W and D.K.

2 The appellant was acquitted by the jury of the remaining four counts on the indictment which concerned three complainants. He was sentenced on December 1st 2017 to a sentence of 20 months” imprisonment.

Background

3 The appellant was a surgeon, who was employed in a hospital where he was appointed as a consultant from the year 1968 until his retirement in 1995. He also had a private clinic in the locality. The offences concerned the indecent assault of a number of teenage patients, in both the hospital and his private clinic. The charges before the jury dated some 41-53 years prior to the trial. Complaints were first made to Gardaí in 2009, with the exception of one complaint which was made in 2007.

4 The nature of the offences concerned the inappropriate touching and fondling of the patients” genitals during the course of medical examinations. The patients were adolescent boys, aged between 13 and 16 years. All the complainants issued civil proceedings.

5 The notice of appeal sets forth 17 grounds of appeal However, ground 17 was not pursued. The remaining grounds are set out hereunder.

Grounds of Appeal

6 That the trial judge erred in law and in principle: -

1. In permitting the prosecution to re-examine the complainant D. K, and two other complainants, in order to adduce evidence that he had settled civil proceedings taken against the hospital at which the appellant worked and also allowed the prosecution to adduce the particular amount of the settlement;

2. In failing to discharge the jury in circumstances where the purported application to adduce evidence of the civil settlements was made by the prosecution to establish that there was no motivation for the complainants to give evidence where they had settled their civil cases, but in circumstances where it was then accepted by the prosecution that witness summonses had issued in respect of all complainants who were required by law to attend court and give evidence;

3. In permitting the evidence of the civil settlements by a third party and the amount thereof to be given in evidence, and in particular in circumstances where he then charged the jury that they should not draw any adverse inference as to evidence about settlement by the hospital;

4. In refusing to sever the indictment;

5. In ruling that he did not require to hear evidence in the context of an application to sever, in circumstances where the prosecution had refused to tender a witness at the request of the defence for the purpose of examining the background of the making of complaints, and the possibilities of suggestibility, contamination of evidence, copy-cat evidence or collaboration;

6. In ruling that the possibility of suggestibility, contamination of evidence, copy-cat evidence or collaboration was not relevant to the application to sever;

7. In failing to grant a direction in respect of the complaints of the remaining five complainants, in circumstances where the offences dated back between 52 and 42 years, where there were missing medical records, missing witnesses, and in which the prosecution were relying on system evidence;

8. When charging the jury in respect of the evidence of D B, the complainant in respect of whom he had directed an acquittal, that they were to disregard the evidence of the complainant, D.B, his mother P B, the medical records in respect of D.B and Dr. Stephens” evidence in respect of D.B and in further directing them that they could not use this evidence in favour of the prosecution or the defence in circumstances where the medical records appeared to directly contradict the evidence of D.B;

9. In allowing the question of system evidence to be considered by the jury in circumstances where he had refused to direct them on its potential effect and where the prosecution had requisitioned him to so advise the jury;

10. In his direction to the jury on system evidence, in particular in emphasising to the jury that in determining whether the complaints were independent they should consider whether there was collusion and whether they considered the complainants truthful;

11. In charging the jury that the defence case was that the complainants colluded with each other where no such allegation was made;

12. In his direction to the jury on system evidence in that he did not warn them that, if they found one of the complainants in the alleged system was not credible, as to what the impact of that finding would be on the system;

13. In refusing to re-charge the jury on the failure of system evidence or discharge the jury in circumstances where they had reached verdicts of acquittal in respect of the complaints of three complainants;

14. In circumstances where he ruled that he would give a corroboration warning to the jury and in circumstances where he ruled that there was no corroboration, in giving an insufficient warning by directing the jury that they should exercise caution before acting on unsupported evidence;

15. In failing to fully particularise and individualise the warning to the jury in his charge in respect of the substantial delay in respect of each complaint;

16. In ruling that Dr MJ could give evidence of recent complaint in respect of the complainant D K.

The civil proceedings

1. In permitting the prosecution to re-examine the complainant D. K, and two other complainants, in order to adduce evidence that he had settled civil proceedings taken against the hospital at which the appellant worked and also allowed the prosecution to adduce the particular amount of the settlement;

2. In failing to discharge the jury in circumstances where the purported application to adduce evidence of the civil settlements was made by the prosecution to establish that there was no motivation for the complainants to give evidence where they had settled their civil cases, but in circumstances where it was then accepted by the prosecution that witness summonses had issued in respect of all complainants who were required by law to attend court and give evidence;

3. In permitting the evidence of the civil settlements by a third party and the amount thereof to be given in evidence, and in particular in circumstances where he then charged the jury that they should not draw any adverse inference as to evidence about settlement by the hospital.

Grounds 1,2 and 3

7 These three grounds concern civil proceedings and the re-examination by the respondent of three complainants in respect thereof. Civil proceedings were instituted by the six complainants...