Ms v DPP and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms Justice Iseult O'Malley
• Judgment Date: 17 February 2015
• Neutral Citation: [2015] IEHC 84
• Docket Number: [Record No. 2013/427 JR]
• Date: 17 February 2015

Between

M.S.

Applicant

and

The Director of Public Prosecutions, Ireland and the Attorney General

Respondents

[2015] IEHC 84

Ms Justice Iseult O'Malley

[Record No. 2013/427 JR]

THE HIGH COURT

JUDICIAL REVIEW

Delay – Prejudicial publicity – Indecent assault – Applicant seeking orders preventing the respondent from proceeding against him – Whether delay would imperil applicant”s right to a fair trial

Facts: The applicant worked as a consultant surgeon in the same hospital from 1964 up to his retirement in 1995. He was charged in July, 2012, with 25 counts of indecent assault alleged to have been committed against 16 complainants. In February, 2013 the applicant was served with additional evidence relating to a further six complainants. The respondent, the DPP, informed the applicant that it was her intention to add charges to the indictment in respect of these complainants. A draft indictment, containing 36 counts of indecent assault, alleged to have been committed either in the hospital or in the applicant”s private consulting rooms between March 1964 and November 1991, was furnished in April, 2013. Applying to the High Court, the applicant sought orders preventing the DPP from proceeding against him in respect of these complaints. The issues raised by the applicant are, primarily, delay in the bringing of the charges, prejudicial publicity and the joinder of additional charges on the indictment. The oldest of the allegations dates from 48 years before the applicant was charged, while the most recent dates from 22 years before charge. Relying upon PT v DPP [2007] IESC 39, the applicant said that the delay has been such as to imperil his right to a fair trial, that he has been the subject of publicity that also endangers that right, and that the joinder of charges is in breach of the relevant legislation. The applicant said that he is prejudiced by reason of the unavailability of witnesses who might have been of assistance to him and because of his declining health and memory. The applicant believed that many witnesses no longer wanted to give evidence on behalf of the applicant because of the sustained media campaign against him. The applicant submitted that the additional counts can be validly added only with his consent, which he has not given while the DPP submits that she is entitled to add the counts by virtue of the provisions of s. 4 of the Criminal Procedure Act 1967.

Held by O”Malley Iseult J that, applying SH v DPP [2006] 3 IR 575, neither the issue of delay, including the applicant”s state of health, nor the prejudicial publicity would, in themselves, be sufficient to warrant the granting of an injunction; to prevent a trial from getting off the ground there is a clear onus on the applicant to demonstrate that the passage of time has caused identifiable prejudice and it is not sufficient to claim that a particular witness, now unavailable, might have had something helpful to say on behalf of the applicant without some indication as to why that should be so. Concerning the adverse publicity, it seemed to O”Malley Iseult J to be just as likely, if not more so, that witnesses from the medical world who previously believed in the applicant”s good character may have changed their minds, and their willingness to speak for him, because of the findings of the Medical Council. On the issue of the additional charges, O”Malley Iseult J considered that the applicant”s interpretation of the statute is correct: the list of witnesses and the statements of their proposed evidence referred to in s. 4B of the 1967 Act is intended to relate to the charges brought against the accused person at that point in time; s. 4C permits service of additional evidence relating to those charges; s. 4M provides for the addition of additional charges if they arise from the material served under ss. 4B and 4C; s. 4N is the provision permitting the joinder of charges not arising from that material, and it requires the consent of the accused. However, O”Malley Iseult J agreed with the respondent that this was not a basis upon which to grant a permanent injunction, or even an injunction restraining prosecution on this particular indictment. As O”Malley Iseult J understood it, all that had been served so far was a draft document; apart from anything else, it was a matter which should in the first instance be raised in the Circuit Court whether by way of preliminary application in the list or before the trial judge.

O”Malley Iseult J held that in the circumstances she would refuse the relief sought.

Application refused.

JUDGMENT of Ms Justice Iseult O'Malley delivered the 17th day of February 2015

Introduction

1 The applicant is an 82-year old retired consultant surgeon. In this application he seeks orders preventing the first named respondent from proceeding against him in respect of complaints of indecent assault made by 22 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.

2 The issues raised in the case are, primarily, delay in the bringing of the charges, prejudicial publicity and the joinder of additional charges on the indictment. The oldest of the allegations dates from 48 years before the applicant was charged, while the most recent dates from 22 years before charge. The applicant says that the delay has been such as to imperil his right to a fair trial; that he has been the subject of publicity that also endangers that right, and that the joinder of charges is in breach of the relevant legislation.

Background facts

3 The applicant worked as a consultant surgeon in the same hospital from 1964 up to his retirement in 1995. 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.

4 In 2008, the Medical Council Fitness to Practice Committee held an inquiry into complaints of professional misconduct of a sexual nature on the part of the applicant. The Committee concluded that the applicant was guilty of such misconduct in relation to three out of nine complainants. An order of erasure from the Register was made by the High Court on the 24thNovember, 2008. The applicant, who had retired some thirteen years earlier, did not appeal the order.

5 In February, 2010 the Minister for Health appointed a retired High Court judge to report on whether or not a public inquiry should be held into allegations made against the applicant. The court has been informed that the report, which has not been published, concluded that there would be no benefit to such an inquiry and that it might prejudice ongoing civil and criminal cases.

6 Meanwhile, 102 civil claims were lodged against the applicant and the hospital where he had worked. The first of these claims was settled by the hospital in May 2012, with no admission of liability by the applicant. The rest were settled on the 4thJuly, 2012, on a similar basis.

The Garda Investigation

7 The applicant was arrested on the 3rd May, 2010 and was questioned about allegations made by five complainants. After this arrest, the applicant's solicitor wrote to the respondent, raising issues about both the extensive publicity surrounding his client and the methodology being adopted by the Gardaí. Rather than having the applicant arrested on multiple occasions to address the large number of allegations, he invited the Gardaí to forward a summary of all of the outstanding matters, to be dealt with in one statement by his client.

8 In September, 2010 the officer in charge of the investigation sent to the applicant's solicitor summaries of 102 complaints made against the applicant. On the 30th November, 2010 the applicant met with detectives from the investigation in his solicitor's office. He was cautioned and then tendered a written statement in which he denied every suggestion of indecent assault.

9 The applicant stated that, given that the allegations dated back to 40 years previously, he could not recall without the assistance of medical records whether most of the complainants had been patients of his. He did recall five of them specifically, for various reasons. He said that at his outpatient clinics he was always accompanied by a nurse and very often by students and junior doctors. On the rare occasions when he saw a patient on his own he was never more than a few yards away from the vision or hearing of other patients. He commented that many of the complainants had come back to him as adult patients. On request, he offered the Gardaí the contact details for his secretaries and access to his diaries.

10 The applicant's solicitor has deposed that after this interview, neither he nor the applicant heard anything further until the 30th July, 2012.

11 The applicant was charged on the 31st of July, 2012, with 25 counts alleged to have been committed against 16 complainants. The book of evidence relating to these charges was served in the District Court on the 31st October, 2012, and the applicant was sent forward on the same date.

12 Inspector Marry confirms that all of the current charges relate to complainants whose statements were summarised in the synopsis provided to the applicant's solicitor in September, 2010.

13 On the 31st July, 2012, the applicant was charged with offences in respect of 16 complainants. The first named respondent has confirmed that the decision to bring these charges was made on the 30th July, 2012.

14 On the 12th February, 2013 the applicant was served with additional evidence relating to a further six complainants. The...