DPP v Shine
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mahon |
| Judgment Date | 21 December 2017 |
| Neutral Citation | [2017] IECA 336 |
| Docket Number | Record No. 258 2017 |
| Court | Court of Appeal (Ireland) |
| Date | 21 December 2017 |
[2017] IECA 336
THE COURT OF APPEAL
Mahon J.
Mahon J.
Edwards J.
Hedigan J.
Record No. 258 2017
IN THE MATTER OF A BAIL APPLICATION
Bail - Indecent assault - Conviction - Appellant seeking bail pending the hearing and conclusion of his appeal against conviction and sentence - Whether conviction appeal would be lengthy
Facts: The appellant, Mr Shine, was tried in respect of eight offences of indecent assault relating to six complainants. One count was withdrawn from the jury in relation to one complainant. The jury found the appellant not guilty in respect of four of the remaining counts, while the remaining three counts were the subject of majority guilty verdicts. The appellant applied for bail pending the hearing and conclusion of his appeal to the Court of Appeal against his conviction at Dublin Circuit Criminal Court on the 2nd November 2017 and his appeal against sentences of two consecutive prison terms of ten months, a total of twenty months imprisonment, imposed on the 1st December 2017.
Held by the Court that it was clear that the conviction appeal would be lengthy and was unlikely to be accommodated with a hearing date until well into next year; should that appeal be unsuccessful, a hearing date for a sentence appeal would not take place until later again in 2018, and there was every possibility, if not probability, that by then the appellant's sentence, with normal remission for good behaviour, would have been served. The Court held that such a scenario could not be deemed fair or proportionate for an eighty five year old man in poor health and unlikely to reoffend, and in circumstances where the offences in question occurred over forty years ago.
The Court held that it would grant the appellant bail subject to conditions, to include his own bond of €1,000, that he reside at 25, Wellington House, 85, Wellington Road, Dublin 4, that he does not travel outside the jurisdiction and does not seek to obtain a passport, and that he sign on weekly in Donnybrook garda station between 9 a.m. and 3 p.m. on Wednesday of each week. In the event of illness preventing his signing on, the Court held that he was to ensure that the Gardai at Donnybrook garda station were provided with a satisfactory medical certificate to this effect. The Court held that the appellant was also under an obligation to expedite his appeal hearings in the Court.
Application granted.
This is the appellant's application for bail pending the hearing and conclusion of his appeal to this Court against his conviction at Dublin Circuit Criminal Court on the 2nd November 2017 and his appeal against sentences of two consecutive prison terms of ten months, a total of twenty months imprisonment, imposed on the 1st December 2017.
The appellant was tried in respect of eight offences of indecent assault relating to six complainants. One count was withdrawn from the jury in relation to one complainant. The jury found the appellant not guilty in respect of four of the remaining counts, while the remaining three counts were the subject of majority guilty verdicts.
The appellant is eighty five years of age. He is a retired consultant surgeon and in 1975 and 1976 when the offences where said to have taken place, worked in that capacity in Our Lady of Lourdes hospital in Drogheda. The indecent assaults were said to have occurred in the course of medical examinations by the appellant of the complainants at the hospital. The appellant is in poor health, and has a number of significant medical conditions including advanced coronary heart disease, a prostate problem with urinary symptoms, cognitive impairment, abnormal cholesterol and hypertension. The appellant was on bail for a considerable period of time prior to his trial and subsequent to his trial while he awaited sentence, and was always compliant with the conditions of his bail.
The notice of appeal to this Court relies on seventeen separate grounds. Two of them, it is contended on behalf of the appellant, present a 'strong possibility' of the conviction appeal being successful. These are:-
(i) The learned trial judge erred in law and in principle in permitting the prosecution to re-examine the complainant, DK 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.
The Court has been advised that the following will be relied upon in the substantive appeal in relation to this particular ground:-
- That the settlement of civil proceedings by a third party (the hospital) which was without admission of liability cannot be relevant probative evidence in a criminal trial.
- That, in particular to lead evidence of the amount of the settlement was extremely prejudicial in circumstances where it could not be said to be relevant.
- That the complainants were required to attend court and give evidence as they were all subject to witness orders. Thus, whether or not civil proceedings had settled in 2012 was simply not relevant, as either way they were required by law to attend and give evidence as prosecution witnesses (having made statements prior to settlement).
- That having allowed the prosecution to introduce this evidence for a very particular purpose, apparently to rebut the suggestion that they were financially motivated to give evidence, the learned trial judge failed to direct the jury in this regard.
- As a result, without...
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