Joel v DPP and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 09 July 2012
• Neutral Citation: [2012] IEHC 295
• Court: High Court
• Date: 09 July 2012

[2012] IEHC 295

THE HIGH COURT

Record Number 595 JR/2012

Joel v DPP & Ors

JUDICIAL REVIEW

Between

Eleanor Joel

Applicant

And

The Director of Public Prosecutions, The Garda Commissioner, Ireland and the Attorney General

Respondents

And

Jonathan Costen and The Health Service Executive

Notice Parties

C (D) v DPP 2005 4 IR 281 2006 1 ILRM 348 2005/8/1599 2005 IESC 77

G (P) v DPP 2007 3 IR 39 2006/26/5503 2006 IESC 19

CONSTITUTION ART 40

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 2

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 14

KENNEDY v DPP & AG UNREP MACMENAMIN 11.1.2007 2007/32/6613 2007 IEHC 3

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

PEOPLE, AG v DUNLEAVY 1948 IR 95

DPP v CULLAGH UNREP CCA 15.3.1999 1999/7/1598

G v DPP 1994 1 IR 374

Crime – Manslaughter – Gross negligence – Trial – Application to prohibit – Applicant seeking to prevent second trial – Applicant charged with neglect in relation to care of her mother

Facts: The applicant had taken responsibility for the care of her mother, who suffered from ill health. The prosecution considered that the applicant had been grossly negligent in the care of her mother, said neglect amounting to manslaughter. After a first trial, the jury were deadlocked and unable to return a verdict. The applicant now sought to prohibit a second trial of the matter.

Held by Charleton J, that the applicant would have to meet the standard test for prohibiting a trial, as detailed in the earlier case of C v Director of Public Prosecutions [2005] 4 IR 281. This was that there was a real or serious risk of an unfair trial. C v Director of Public Prosecutions [2005] 4 IR 281 followed.

The applicant had submitted there were concerns in relation to disclosure and the investigation of the matter, as well as contending the charge criminally negligent manslaughter was unconstitutional. These matters, she contended, meant that any second trial would not be fair.

The Court considered that focus was required in relation to the case as a whole. The trial judge would be best placed to address the concerns about fairness raised by the applicant, and the jury in the new trial would be able to assess the evidence in the case. People (Attorney-General) v Dunleavy [1948] IR 95 applied.

The application was therefore refused.

1 Mr. Justice Charleton delivered ex tempore on the 9th day of July 2012

2 1. The background to this case is the unfortunate death on 7 January 2006 of a lady in Wexford who was called Mrs Evelyn Joel. Apparently, the applicant claims, the late Mrs Joel was a person of strong character, particularly as regards her family. She was also a person with a predilection for smoking, it is claimed. It appears that some years previously, in 2004, she had developed a severe condition. On her death, and following an autopsy, it became apparent that she suffered from a kind of multiple sclerosis that interferes with brain function. As I understand from the submissions that have been made to me, she was brought to hospital in 2004 but she had a problem with hospitals. There were two dominant reasons: firstly, she wanted to smoke 60 cigarettes a day, which is not allowed in hospital. One often sees patients outside hospital having a smoke; it is an odd thing to see but it nevertheless does happen. Secondly, she had a very strong desire not to remain in hospital; a kind of hospital phobia is alleged by the applicant. From what I have been told, it seems that what happened was that she subsequently moved back home with her partner, the first notice party, but in due course her partner decided that he could not take care of her; or perhaps the relationship went sour.

3 2. She left that place and then moved in with her daughter, the applicant, some time in 2005. Her daughter was thereby put in the situation of taking care of her mother. This was apparently difficult for the applicant as her mother, it is said on her behalf, was the kind of person who exercised dominance over her. In any event, what happened between that time on her death is really not a matter for me. On the 7 January 2006, this lady Mrs Evelyn Joel died in hospital, a doctor or an ambulance having been called some six days previously on the 1 January 2006. The lady in question, it is said, suffered from severe bed sores, perhaps leading to septicaemia, and the cause of death is one of the many things that is disputed in this case.

4 3. It appears to be claimed by the applicant that the deceased picked up pneumonia while in hospital and died of that. The relationship of the bedsores or the alleged neglect prior to that to the pneumonia is something that can be debated and no doubt will be debated at trial. And in addition to that, it is alleged by the prosecution in this case there was malnutrition; and again that may be disputed one way or another as to whether the lady wished to eat or not or wanted to be neglected or not, I do not know, in consequence of the severe brain pathology that arose from the condition, which I mentioned earlier.

This application

5 4. This is an application to prohibit a second trial of the daughter of the deceased, the applicant in these proceedings, and the application has been made on notice to the Director of Public Prosecutions, the Garda Commissioner, and Ireland and the Attorney General. Also on notice are the deceased's partner and the Health Service Executive (HSE). The test for prohibiting a criminal trial is a well known one and has been reiterated many times. As was said in the Supreme Court by Denham J in DC v Director of Public Prosecutions [2005] 4 IR 281 at 283, where an applicant seeks to prohibit a trial in which he or she is the accused:

6 Such an application may only succeed in exceptional circumstances. The Constitution and the State, through legislation, have given to the [DPP] an independent role in determining whether or not a prosecution should be brought on behalf of the people of Ireland. The [Director] having taken such a decision, the courts are slow to intervene. Under the Constitution it is for a jury of twelve peers of the applicant to determine whether he is guilty or innocent. However, bearing in mind the duty of the courts to protect the constitutional rights of all persons, in exceptional circumstances the court will intervene and prohibit a trial.

7 In general such a step is not necessary as the trial judge maintains at all times the duty to ensure due process and a fair trial. The basic assumption to apply in relation to all pending trials is that they will be conducted fairly, under the presiding judge. However, in circumstances where there is a real or serious risk of an unfair trial, the courts will intervene so that a defendant may not be exposed to the commencement of the process, it being the assumption that should such a trial commence it will be stopped by the direction of the trial judge because of the real or serious risk of an unfair trial.

8 5. Now the grounds for the application that are laid out in the papers here are many. One of the main grounds is the issue of disclosure. In essence what is said is that the HSE had a responsibility in relation to this matter because this lady, the deceased Mrs Evelyn Joel, was a very ill woman, had been within the curtilage of the relevant department of the HSE for care purposes and that at the particular time they knew that she was living with her daughter they stopped visiting her, stopped phoning her and stopped taking any interest in her. And again as with the other facts in this case, I have no idea whether this is true or not and I certainly would not want to make any comment one way or the other. It so happens that the issue of disclosure became central to this case when the accused was returned to the Circuit Court for trial in early 2007. An application was then made before Judge Michael D White for disclosure against the Health Service Executive. Judge White ordered disclosure and then there was an appeal to the High Court. Edwards J ruled that he had to overturn that decision. Then there was a further appeal to the Supreme Court. In the meantime, while the appeal was listed, the parties had sorted out matters apparently to their own satisfaction. The Health Service Executive gave disclosure to the Director of Public Prosecutions who in turn passed it on to the accused. So when, on 25 May 2011, the Supreme Court disposed of the appeal they...