DPP v M.S. 2

JurisdictionIreland
JudgeMs. Justice Isobel Kennedy
Judgment Date17 November 2020
Neutral Citation[2020] IECA 309
Docket NumberRecord Number: 50/19
CourtCourt of Appeal (Ireland)
Date17 November 2020
BETWEEN/
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
- AND -
M.S. (No. 2)
APPELLANT

[2020] IECA 309

Edwards J.

Kennedy J.

Ní Raifeartaigh J.

Record Number: 50/19

THE COURT OF APPEAL

JUDGMENT of the Court delivered on 17th day of November 2020 by Ms. Justice Isobel Kennedy .
1

This is an appeal against conviction. On the 8th February 2019 the appellant was found guilty of twelve counts of indecent assault contrary to Common Law and one count of sexual assault contrary to section two of the Criminal Law (Rape)(Amendment) Act 1990 in respect of seven complainants.

Background
2

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 private clinics in the locality. The offences concerned the assault of a number of male teenage complainants in both the hospital and his private clinics between the years 1971 and 1992.

3

In relation to four of the complainants, G.McA., I.F., P.McC. and G.T., there is one relevant count each. In relation to two others, P.L. and R.McQ., there are two counts. The assaults generally involved the groping or fondling of testicles, or the penis, on occasions when the complainants presented for a medical examination. However, in relation to one complainant P.C., there are five counts; two specific incidents and three sample counts. The sample counts refer to a period of time of approximately 20 days when P.C. was detained in hospital following surgery and M.S. assaulted him on several occasions.

4

Complaints were first made to An Garda Síochána in 2009 and all complainants issued civil proceedings.

Grounds of Appeal
5

The appellant initially put forward 24 grounds of appeal but the appellant no longer wishes to pursue grounds 1, 2, 3, 4, 20, 21 and 22. The remaining grounds as reflected in the Notice of Appeal are set out hereunder:-

“1. Ground 5: The learned trial judge erred in law and in principle to refusing to discharge the jury after evidence was given by one of the complainants, P.McC., that the accused had been struck off the medical register.

2. Ground 6: The learned trial judge erred in law and in principle to refusing to discharge the jury after evidence was given by one of the complainants, P.C., that the insurance company had settled the civil actions.

3. Ground 7: The learned trial judge erred in law and in principle to refusing to discharge the jury after evidence was given by one of the complainants, I.F., that there had been previous complaints made against the accused in the 1990s and that there had been an earlier criminal trial.

4. Ground 8: The learned trial judge erred in law and in principle in refusing to allow the contents of a document disclosed to the defence by the prosecution entitled “statement of P.C.” to be put to P.C. as a previous inconsistent statement in cross-examination in circumstances where he denied authorship.

5. Ground 9: The learned trial judge erred in law and in principle in refusing to direct the prosecution to investigate the provenance of the document disclosed to the defence entitled “statement of P.C.”

6. Ground 10: The learned trial judge erred in law and in principle in failing to grant a direction of no case to answer, in circumstances the offences were extremely old, where there were missing medical records, and medical records that appeared to contradict evidence of some of the complainants, in circumstances where the prosecution had not demonstrated that there was no suggestibility, contamination, copycat evidence or collaboration as between complainants.

7. Ground 11: The learned trial judge erred in law and in principle in failing to withdraw the counts relating to the complainant P.C. from the jury on the basis of the inconsistencies in his evidence.

8. Ground 12: The learned trial judge erred in law and in principle in failing to withdraw the counts relating to the complainant P.C. from the jury in circumstances where the prosecution were unable to confirm the source of a document which appeared to be a prior inconsistent statement of P.C. and where the prosecution had objected to the cross-examination of P.C. on this document

9. Ground 13: The learned trial judge erred in law and in principle in refusing to allow the accused give evidence about his prior relationship with X.X. and Dignity 4 Patients in circumstances where XX had had contact with all the complainants prior to trial.

10. Ground 14: The learned trial judge erred in law and in principle in interrupting the cross-examination of the accused indicating that in his view that the accused understood a question.

11. Ground 15: The learned trial judge erred in law and in principle in failing to discharge the jury in circumstances where he had expressed the view during the cross-examination of the accused that the accused was not answering questions and that they should have the “measure of him”

12. Ground 16: The learned trial judge erred in law and in principle in charging the jury as to how they should treat the evidence of each complainant for the purpose of assessing whether the evidence of one complainant could be supportive or corroborative of the evidence of another complainant and in particular, failed to tell the jury that they must be satisfied beyond reasonable doubt in relation to a particular count before the fact of that conviction could be used to support another count.

13. Ground 17: The learned trial judge erred in law and in principle in telling the jury that if they were satisfied that the evidence of the complainants was not influenced by materials published by the press and published by a particular organisation, then the fact that there were seven complainants became compelling evidence in the case.

14. Ground 18: The learned trial judge erred in law and in principle in re-charging the jury on the requisition of counsel for the appellant in relation to the grounds at [16] and [17] above in such a way as to further prejudice the appellant.

15. Ground 19: The learned trial judge erred in law and in principle in failing to discharge the jury on the request of counsel for the appellant following upon the matters complained of at [16 – 18] above.

16. Ground 23: The learned trial judge erred in law and in principle in failing to discharge the jury in circumstances where, during the course of his charge, the learned trial judge stated that evidence of multiple complainants in the absence of collusion is “compelling” evidence.

17. Ground 24: The trial was unfair in the circumstances of the accused's age (86), health and medical condition.”

The grounds were addressed by the appellant and respondent in the following groups:-

Grounds 5, 6 and 7-

Ground 5: The learned trial judge erred in law and in principle in refusing to discharge the jury after evidence was given by one of the complainants, P.McC., that the accused had been struck off the medical register.

Ground 6: The learned trial judge erred in law and in principle in refusing to discharge the jury after evidence was given by one of the complainants, P.C. that the insurance company had settled the civil actions.

Ground 7: The learned trial judge erred in law and in principle in refusing to discharge the jury after evidence was given by one of the complainants, I.F., that there had been previous complaints made against the accused in the 1990s and that there had been an earlier criminal trial.

Grounds 5, 6 and 7 - Background and Evidence
6

In respect of P.McC., during the course of cross-examination, the following exchange took place:-

“Q. How did you know that there was a clinic in […] Street?

A. It would have been covered on the media

Q. You knew that from the media and had it been discussed with you during the Dignity 4 Patients meetings?

A. No.

Q. Was there mention of it in the Dignity 4 Patients meetings?

A. Not that I remember.

Q. Might there have been?

A. Might there have been? There might have been but then there mightn't have been.

Q. There might have been but there might not have been. Well, anyway, you said nothing about this until you saw media reports in relation to a M.S., isn't that right?

A. That's right. Earlier, I had years before that taken up the phone, the phone was in my hand to ring the guards but I didn't, that would have been a number of years before that, I was afraid. But, yes, 2008, when I seen that he was struck off.

Q. I see. So, you then phoned–you watched the media reports and a number was given, isn't that right, that you could phone?

A. I missed it, I missed the number. So I rang RTÉ myself and I asked where could I find this number.”

7

A second reference to being struck off the medical register came about during the re-examination of P.McC. as follows:

“Now, I think you gave evidence that in response to Mr Hartnett – that in 2008 that you thought that M.S. was struck-off and that you got a telephone number from RTÉ; is that correct?

A. That's correct.

Q. And I think you said you attended a meeting after that; is that correct?

A. Yes, the lady on RTÉ, I got speaking directly to her, the lady that was actually on it, Sheila O'Connor from Patient Focus, and –

Q. And what is Patient Focus?

A. Patient Focus. Well Patient Focus, they focused on needs of patients, so I was a patient in […], so I wanted to come – at this stage, I'd made up my mind, I'm coming forward, so I contacted her.

Q. And you attended a meeting?

A. I attended a meeting that Patient Focus set up.”

An application to discharge the jury was made to the trial judge which application was refused:-

“JUDGE: I'm against you, Mr Hartnett, in your application. It seems the initial response by the witness was completely natural. It's basically you asked a question and he said he reported the matter to the guards as a result of certain events in the national media. It seems he gave evidence of actually contacting RTÉ and he...

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2 cases
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    • Ireland
    • Court of Appeal (Ireland)
    • 29 Marzo 2023
    ...and The People (DPP) v M [2015] IECA 65; the principles arising from which were summarised by this Court in The People (DPP) v MS (No.2) [2020] IECA 309 as follows: “It is well established by this Court that the withdrawal of the case from the jury is one which should only arise as an excep......
  • DPP v C.S.
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    ...the complainants may provide corroboration as that issue is discussed on the basis of system evidence in The People (DPP) v MS (No. 2) [2020] IECA 309. 65 Should the trial judge decide, as in the present case, that there is no corroboration in law, then the possibilities of contamination, c......

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