M (K) v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hanna |
| Judgment Date | 01 March 2013 |
| Neutral Citation | [2013] IEHC 183 |
| Court | High Court |
| Date | 01 March 2013 |
[2013] IEHC 183
THE HIGH COURT
BETWEEN
CONSTITUTION ART 38.1
H (S) v DPP 2006 3 IR 575 2007 1 ILRM 401 2006/27/5802 2006 IESC 55
B (S) v DPP & DISTRICT JUDGE HARNETT UNREP SUPREME 21.12.2006 2006/5/852 2006 IESC 67
BARKER v WINGO 1972 407 US 514
M (P) v MALONE 2002 2 IR 560 2002/16/3761 2002 IESC 46
M (P) v DPP 2006 3 IR 172 2006 2 ILRM 361 2006/37/7964 2006 IESC 22
DEVOY v DPP 2008 4 IR 235 2008/12/2458 2008 IESC 13
O'C (P) v DPP 2008 4 IR 76 2008/48/10390 2008 IESC 5
K (J) v DPP UNREP SUPREME 27.10.2006 2006/30/6512 2006 IESC 56
BLOOD v DPP UNREP SUPREME 2.3.2005 2005/5/844 2005 IESC 8
T (P) v DPP 2008 1 IR 701 2007/58/12433 2007 IESC 39
CIVIL LIABILITY (AMENDMENT) ACT 1964
MULLALLY v BUS EIREANN 1992 ILRM 722 1992/12/3877
CRIMINAL LAW
Judicial review
Application for judicial review - Prohibition of criminal trial - Sexual offences - Claim that fair trial impossible due to delay - Alleged actual prejudice - Alleged loss of documentary evidence - Unavailability of witnesses - Stress and anxiety - Applicable test - Whether real risk that trial would be unfair - Whether actual prejudice demonstrated - Role of trial judge - Whether blameworthy prosecutorial delay - SH v DPP [2006] IESC 55, [2006] 3 IR 575; B(S) v DPP [2006] IESC 67, (Unrep, SC, 21/12/2006); Barker v Wingo (1972) US 514; PM v Malone [2002] 2 IR 560; M(P) v DPP [2006] IESC 22, (Unrep, SC, 5/4/2006); Devoy v DPP [2008] IESC 13, [2008] 4 IR 235; PO'C v DPP [2008] IESC 5, [2008] 4 IR 76; JK v DPP [2006] IESC 56, (Unrep, SC, 27/10/2006); Blood v DPP [2005] IESC 8, (Unrep, SC, 2/3/2005); PM v DPP [2006] IESC 22, [2006] 3 IR 172; PT v DPP [2007] IESC 39, [2008] 1 IR 701 and Mullally v Bus Éireann [1992] ILRM 722 considered - Relief refused (2012/504JR - Hanna J - 1/3/2013) [2013] IEHC 183
M(K) v Director of Public Prosecutions
Facts: The applicant was a medically qualified General Practitioner who was charged with four counts of indecent assault and sexual assault in respect of three complainants allegedly committed between the years of 1989 and 1996. An initial complaint was made to the Health Service Executive (the HSE) in 2006 which led to a number of investigations. A complaint to An Garda Síochána was subsequently made in October 2010 and the applicant was eventually charged on the 27 th March 2012. The applicant sought judicial review on a number of grounds. It was his claim that the delay in making the initial complaint, the delay in reporting the matter to An Garda Síochána after the initial report was made to the HSE and then the subsequent delay in processing the complaint until he was formally charged, were such that he would not be able to receive a fair trial. It was alleged that these delays were inordinate and inexcusable, and had resulted in a loss of documentary evidence, the death or unavailability of relevant witnesses and loss of memory. He pointed out that one of the prosecution witnesses was a counsellor to one of the complainants some years before who had made a statement to An Garda Síochána even though the notes of the sessions were no longer available. It was further alleged that the delay between the initial complaint to the HSE and the time he was formally charged had caused severe stress and anxiety to him.
In response to the applicant”s claims, the affidavit of the investigating officer, Detective Sergeant Michael Corbett, pointed out that following the complaints being made to An Garda Síochána, a number of lengthy enquiries had to be made. These included searching for medical and counselling records, as well as interviewing a number of people. On that basis, it was claimed the delay in charging the applicant was excusable. It was further claimed by the respondent that no actual prejudice had been caused by the applicant as a result of the delays.
Held by Hanna J that the court was not satisfied that any actual prejudice had been caused to the applicant as a result of the absence of documentary evidence, the death of a possibly relevant witness and the passage of time. It relation to the evidence of the counsellor, the court was satisfied with the opinion of Detective Sergeant Michael Corbett that the evidence provided little probative value. The loss of the documents was therefore held not to have caused any significant actual prejudice to the applicant. It was also pointed out that it had not been established that any further missing medical notes created a situation where any subsequent trial would be unfair.
It was further held that in accordance with case law, the length of the delay between the formal complaint being made and the applicant being charged was not so great to warrant a prohibition of the trial. The investigation into the complaints was complex and easily explained the delay. In relation to the claim that the delays had caused severe stress and anxiety, it was held that it had not been established that this had gone above and beyond the level of stress and anxiety that any person in the applicant”s position would face. It was also pointed out that it was in the public interest that proper investigations were made even where distress was caused to an accused.
Relief sought refused.
Judgment of Mr. Justice Hanna delivered on 1st day of March 2013
1. The applicant seeks an order of prohibition restraining the respondent from prosecuting him in respect of a number of sexual offences allegedly committed between 1989 and 1996. Leave to proceed by way of judicial review was granted by Peart J. on 11 th June, 2012.
2. The applicant qualified as a Medical Doctor in 1981 and began practicing as a General Practitioner in 1989. He is charged with four counts of indecent assault and sexual assault in respect of three complainants, MH, AMH and AM. It is submitted that the delay in making a formal complaint to An Garda Síochána after an initial complaint was made to the Health Service Executive (the HSE) in 2006, and, subsequently, the delay in processing that complaint until the applicant was charged on 27th March, 2012 make it impossible for the applicant to receive a fair trial. The applicant contends that there is actual prejudice due to a loss of documentary evidence, the death or unavailability of relevant witnesses and loss of memory; as well as prejudice brought about due to severe stress and anxiety suffered by him as a result of the delay.
3. An initial complaint was made to the HSE by one of the complainants in 2006. As a result of this the applicant received a letter from the HSE in June, 2006 seeking an interview at which he was made aware of the nature of the allegation against him. In July, 2007 a formal complaint was made by AM to the Medical Council and a fitness to practice investigation was commenced. This matter was struck out in November, 2008. In 2010, two separate investigations were conducted by the HSE, firstly in pursuance of the applicant's four contracts with the HSE and secondly under the Child Care Act, 1991. Formal complaints were made to the Gardaí by the three complainants on 2 nd October, 2010, 1 st April, 2011 and 7th April, 2011. The applicant was arrested in June, 2011 and charged on 27 th March, 2012 at Mallow District Court.
4. It is contended that from June, 2006 until March, 2012 the applicant has had to endure the uncertainty of whether criminal charges would proceed against him and that this length of time is excessive, inordinate, and unfair and has undermined his right to a trial in due course of law. It is contended that the stress and anxiety suffered by the applicant is excessive and make this an exceptional case.
5. It is further submitted that the length of time it took to charge the applicant after the first formal complaint was made was excessive and unfair. In relation to this period, Detective Sergeant Michael Corbett in his affidavit says that after receiving notification from the HSE in June, 2010, the three complainants were invited to make statements. Initially, the complainants needed time to consider whether they would make written statements and on 2 nd October, 2010 MH gave a detailed written statement to Gardaí. Detective Sergeant Corbett says that a number of enquiries had to be made as a result of this statement including the search for medical and counselling records and the interviewing of a number of other persons. Detective Sgt. Corbett says that due to the passage of time records and archives had to be searched and this all consumed much time.
6. AH and AMH gave written statements to the Gardaí on 1 st and 7 th April, 2011 respectively. As the complaints against the applicant were similar, these matters were investigated together and records and statements were sought in relation to the second and third complainants also. A number of persons had to be interviewed and consideration had to be given to the fact that one of the complainants is now a vulnerable adult. Detective Sgt. Corbett says that on 7 th June, 2011 a search warrant for the applicant's home was issued by at Mallow District Court and the home was searched on 10 th June, 2011. The applicant was arrested and questioned on 22 nd June, 2011 and a file on the matter was sent to the respondent on 27 th September, 2011. Detective Sgt. Corbett swears in his affidavit that he understands from enquiries with the respondent that the file was received in the Directing Office of the respondent on 12 th October, 2011 and assigned to a Professional Officer on the 14 th October, 2011. Directions in relation to all three complaints were received from the respondent on 10 th March, 2012 and the applicant was charged on 27 th March, 2012 at Mallow District Court, a...
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