M.S. v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Gerard Hogan |
| Judgment Date | 22 December 2015 |
| Neutral Citation | [2015] IECA 309 |
| Docket Number | 2015 No. 126 |
| Court | Court of Appeal (Ireland) |
| Date | 22 December 2015 |
Ryan P.
Peart J.
Hogan J.
[2015] IECA 309
Hogan J.
2015 No. 126
THE COURT OF APPEAL
Criminal Law — Historical sexual abuse of children — Medical Profession — Delay — Publicity — Joinder of Additional Charges — s. 4M and s. 4N of the Criminal Procedure Act 1967
Facts: The applicant was a retired consultant surgeon who faced a number of charges of indecent assault committed on patients over a period from 1964 to 1991 in the hospital where he worked. The applicant sought orders to restrain the prosecution of the offences based on three grounds: firstly, the delay in bringing the charges; secondly, prejudicial publicity and thirdly, the joinder of additional charges on the indictment. The applicant contended that the delay in bringing the proceedings impacted upon his right to a fair trial and the publicity surrounding his case also affected that right. He also argued that the joinder of charges was a breach of s. 4N of the Criminal Procedure Act 1967.
Held by Hogan J: The court acknowledged that this type of delay was not unusual when dealing with historical cases of sexual abuse on children. The court had to determine if the lapse of time in the applicant’s case was too great and too prejudicial to the applicant. The court held that the delay in the case should not prevent the prosecutions from proceeding. In addition, the delay was not prejudicial to the applicant in terms of missing witnesses or evidence.
The applicant’s case had generated considerable adverse publicity but as the publicity occurred long before the latest charges were preferred in July 2012 the court determined that the applicant was not entitled to relief on this ground. The additional charges relating to six further complaints had not been the subject of any of the charges put forward by the District Court and did not arise from the earlier charges for the purposes of s. 4M of the 1967 Act (as amended). Therefore, the applicant’s consent was required to join the charges to the indictment by virtue of s. 4N of the 1967 Act (as amended). As the applicant had not given consent the court held that the charges must be the subject of a separate prosecution and granted relief to that effect.
The applicant in these judicial review proceedings is a 83-year old retired consultant surgeon who is currently facing a multiplicity of charges of indecent assault made by 22 separate complainants. The alleged offences are all said to have been committed either in the hospital where he worked or in the applicant's private consulting rooms. The applicant worked in the hospital in question between 1964 and 1995 when he retired. The applicant was served with these charges on 31st July 2012.
The applicant had previously faced charges of this nature in 2003. Between November 1994 and December 1996 he was interviewed several times by An Garda Síochána in respect of complaints made against him by former patients. He was then charged with 38 counts of indecent assault relating to 18 complainants. However, ultimately he stood trial in 2003 on an indictment containing 11 counts relating to six complainants. The applicant was acquitted on each of these charges.
The applicant's name was, however, erased from the register of medical practitioners by decision of the Medical Council in October 2008. He did not appeal that decision.
The complaints themselves relate to events which are said to have occurred on a variety of dates between 1964 until 1991. At the date of the alleged incidents the various complainants were almost all teenage boys who had been admitted for relatively minor injuries or illnesses, such as, for example, football injuries and minor traffic or workplace injuries. While the details of the complaints vary from case to case, the general tenor of the complaints is that the applicant indecently assaulted the boys under his care by, for example, fondling their testicles and penises. In other cases it is contended that the applicant masturbated the boys to the point of ejaculation. Some of this abuse is said to have occurred when the applicant was doing his ward rounds. In other cases, the complaint is that the abuse happened at the applicant's private consulting rooms.
The complaints were very helpfully summarised in tabular form by O'Malley J. and I take the liberty of reproducing this summary for the purposes of this judgment. Complainant A has withdrawn his complaint, citing ill-health. The remaining complaints are as follows:-
Complainant B.
Date of complaint: 25th May, 2009
Date of alleged offence: 1965
Medical records: None available
Complainant C.
Date of complaint: 22nd June, 2009
Date of alleged offence: Between 1967 and 1969
Medical records: None available
Complainant D.
Date of complaint: 2nd July, 2009
Date of alleged offence: 1968/1969
The only medical records relevant to this complainant relate to a hospital admission in 1991. However, his mother has made a statement in which she confirms that when he was about eleven years old he spent about three weeks in hospital, followed by several appointments as an outpatient with the applicant.
Complainant E.
Date of complaint: 20th, November, 2009
Date of alleged offence: 1969/1970
Medical records: None available.
Complainant E says in his statement that his father was in the room at the time of the assault but on the other side of a screen. He further says that he told his mother a few days later and she told his father. His father is apparently deceased and he did not wish his mother to be interviewed. However, during the hearing a statement from his mother was provided to the court. In it she said that she does not remember being told by her son that he had been molested or touched inappropriately by the applicant. She says that her memory is not as good as it once was.
Complainant F.
Date of complaint: 18th December, 2009
Date of alleged offence: 1970
Medical records: None available.
This complainant says that he told his mother what had happened. She discussed it with his sister and brother-in-law and they decided not to pursue a complaint.
Complainant G.
Date of complaint: 20th January, 2009
Date of alleged offence: 1970/1971
Medical records: None available
Complainant H.
Date of complaint: 28th November, 2009
Date of alleged offence: 1971
Medical records: None available.
Complainant H has said that his father accompanied him to the clinic in 1971. His father passed away in 1984.
Complainant I.
Date of complaint: 11th November, 2009
Date of alleged offence: 1972
Medical records: None available.
This complainant states that he is ‘nearly sure’ that he made a complaint to his mother after being indecently assaulted in 1972. He also says that it was discussed with his brothers and sisters. His mother is deceased and this complainant does not wish his siblings to be contacted in respect of the matter.
Complainant J.
This complainant indicated that he would not be available for a trial as he resides abroad.
Complainant K.
Date of complaint: 28th May, 2009
Date of alleged offence: 1974
Medical records: Available.
Complainant K alleges that when he was indecently assaulted in the hospital in 1974 he made a complaint to a junior doctor. The doctor has not been identified. This complainant stated that a named nurse had been on duty in the applicant's outpatient clinic. The nurse in question, when approached by investigating Gardaí, stated that she did not recall this patient and that she had never at any time worked in the outpatient department.
Complainant L.
Date of complaint: 18th June, 2009
Date of alleged offence: 1974/1975
Medical records: Available.
Complainant M.
Date of complaint: 16thJanuary, 2009
Date of alleged offence: 1975/1976
Medical records: Available.
Complainant M. made to a statement to the Gardaí in which he says that he informed a (named) neighbour about the manner in which he was abused by the applicant. He claims that the neighbour said in response that he had also been abused by Mr. S. The neighbour then made a statement to the investigating Gardaí in which he said:
‘I have no knowledge of this ever being discussed with [M.] I was a patient of Mr. S's in the…hospital. I was under his care with a broken arm when I was a teenager. Mr. S. did not abuse me in any manner at all.’
Complainant N.
Date of complaint: 18th June, 2009
Date of alleged offence: 1975/1976
Medical records: Available.
Complainant N says in his statement that he was accompanied to the applicant's clinic by his father on the occasion of which he complains (in 1975 or 1976) but that he did not tell his father. No statement has been taken from his father, because he is an elderly man and N did not wish him to be interviewed in respect of the matter.
...Complainant O.
Date of complaint: 21st May, 2007
Date of alleged offence: 1976
Medical records: Available.
Complainant P.
Date of complaint: 9th December, 2009
Date of alleged offence: Between 1979 and 1981
Medical records: None available
Complainant Q.
Date of complaint: 24th April, 2009
Date of alleged offence: 1981
Medical records: None available.
Complainant R.
Date of complaint: 25th May, 2010
Date of alleged offence: 1984
This complaint was withdrawn in a written statement citing ill health.
Complainant S.
Date of complaint: 25th January, 2009
Date of alleged offence: 1985
Medical records: Available.
Complainant T.
Date of complaint: 27th April, 2009
Date of alleged offence: 1988
Medical records: Available
Complainant U.
Date of complaint: 17th September, 2009
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