M.S. -v- Director of Public Prosecutions & ors [2015] IEHC 84 (17 February 2015)

Judgment


Title:	M.S. -v- Director of Public Prosecutions & ors
Neutral Citation:	[2015] IEHC 84
High Court Record Number:	2013 427 JR
Date of Delivery:	17/02/2015
Court:	High Court
Judgment by:	O'Malley Iseult J.
Status:	Approved

___________________________________________________________________________

Neutral Citation: [2015] IEHC 84

THE HIGH COURT

[Record No. 2013/427 JR]

JUDICIAL REVIEW

BETWEEN/

M. S.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

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 respondent 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 between March 1964 and November 1991, was furnished on the 8th April, 2013. It should be noted that the applicant’s solicitor had been requesting an indictment since the 14th November, 2012.

Explanation for delay in charging the applicant
15. In an affidavit sworn on behalf of the respondents in February, 2014 Detective Inspector Patrick Marry has described the course of the investigation. He says that as of the date of swearing that affidavit 160 complaints against the applicant had been received. The investigation of each one involved obtaining medical records, expert opinions and corroborative statements.

16. A Garda file was submitted to the office of the DPP on the 29th October, 2010. It dealt with about 50 complainants. The second file was sent on the 24th February, 2011, in relation to a further 59.

17. Ms Aisling Kelly, who was the solicitor responsible for the file from March, 2011 says that she could not make any meaningful submission on it to the Director until receipt of the full Garda file. She was given that in June, 2011. She accepts that it then took almost ten months - to May, 2012 - to prepare a submission for consideration by the Deputy Director but given the number of complainants (108 at that point) she does not consider that the task could have been completed much more quickly.

18. At that stage the Deputy Director reviewed the file and referred it to the first named respondent. She gave her directions on the 30th July, 2012 and the applicant was charged the next day.

19. The decision whether or not to add charges in respect of a further six complainants was not made until receipt of advices from counsel in November, 2012. Thereafter, it is said that “there was further input at different levels within the directing division” of the first named respondent’s office. Directions to add the additional counts were given in February, 2013.

The current charges
20. In the following summary of relevant dates and availability of background evidence, the names of the complainants have been redacted. They are listed in the order of the draft indictment.

Complainant A.

Date of complaint: 27th January, 2009

Date of alleged offence: 1964

Medical records: None available

This complaint was withdrawn in a written statement citing ill health.

Complainant B.

Date of complaint: 25thMay, 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 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

Date of alleged offence: 1990

Medical records: Available

Complainant V.

Date of complaint: 6th May, 2010

Date of alleged offence: Between 1989 and 1991

Medical records: None available.

21. On the second day of the hearing before this court the respondent disclosed two statements to the applicant. The first is from the friend referred to in the statement of Complainant M. Having had the relevant portion of the complainant’s statement read to him by one of the investigating Gardaí, the friend 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.”

22. The second disclosed statement is from the mother of Complainant E referred to above at para 20.

The applicant’s evidence as to the effects of delay
23. The applicant says 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.

24. The applicant has instructed his solicitor that between 1964 and 1995 he treated approximately nine thousand patients every year. He says that he does not recall any of the complainants with the exception of Complainant Q. The reason he recalls this individual is that he was sued by him in 1987 in respect of medical treatment administered in 1981. There was no claim of indecent assault in those proceedings.

25. He has identified two categories of potential witnesses who, he says, could have been of assistance. In the first category he has identified a number of individuals, named in the book of evidence and disclosure materials, who could have had relevant evidence relating to specific allegations but who are now unavailable or not identifiable. For the most part, this arises where a complainant has said that another person was present in the vicinity at the relevant time, or was informed of the complaint at an early stage. On behalf of the applicant, it is averred in respect of each of these potential witnesses that their unavailability has hampered the investigation and has deprived the applicant of the reasonable possibility of evidence or a line of defence which could be of significance and that he is thereby caused specific prejudice. He has therefore been deprived of a trial in due course of law.

26. In the second category of unavailable witnesses are certain doctors and nurses who gave evidence on behalf of the applicant in the 2003 trial. The applicant’s solicitor has deposed to the efforts made by him to ascertain their availability in the pending trial. He says one is untraceable by him, one has Alzheimer’s disease and three have told him that they will not be “in a position to assist”.

27. The applicant is said to suffer from ill health associated with his age. He has a history of angina and in 2007 he underwent multi-vessel coronary angioplasty stenting. He is on long-term cardiac medication.

28. According to a report submitted on his behalf from a consultant neuropsychologist, the applicant has some difficulties with his memory within the range expected at his age.

29. On behalf of the respondents, Detective Inspector Patrick Marry has averred that the Gardaí who interviewed the applicant during the course of investigation had no concerns about his cognitive functioning and no issue was raised at that time by his solicitor. He was examined by a doctor while in Garda custody and was considered fit for interview.

Prejudicial publicity
30. The applicant’s solicitor has averred that he believes that many witnesses no longer want to give evidence on behalf of the applicant because of what he describes as

“…the sustained media campaign against him, and the suggestions in the media that these witnesses should not have given evidence at the 2003 trial, should be subject to professional investigation themselves and that the jury verdict in 2003 was incorrect.”

31. He has engaged a media company to collate broadcast materials and print articles referring to the applicant since the order of the High Court erasing the applicant’s name from the register in 2008. This event was itself the topic of widespread media discussion. He has exhibited the results of the search, which amounts to several volumes of printed material.

32. The solicitor has also exhibited copies of records of Dail Debates referring to the applicant, who appears to have been mentioned in the House on 19 occasions between October, 2009 and June, 2012.

33. On the 8th June, 2009, RTE broadcast a programme about the applicant. The applicant’s solicitor describes it as

“… a strongly emotive, documentary type programme purporting to be an investigation into the applicant. A highly unusual and significantly prejudicial aspect of this programme was the attempt to undermine the verdict of the jury in the 2003 trial and the suggestion in the programme that particular persons who were witnesses adduced [sic] in evidence by the applicant at that trial were persons that required some form of professional or other investigation. I say that this is the only occasion in my professional career when I have witnessed that type of attack on witnesses.”

34. The programme in question does indeed present a picture of a man who successfully concealed his guilt for 30 years. It appears to be critical of the 2003 trial because of the fact that the jurors were from the locality. Reference is made to “prominent members” of the medical profession who attended on behalf of the defence. The “jubilation” of the defence when the verdicts were brought in is contrasted with the “devastation” of the complainants. Allegations are made against the applicant in relation to matters not before the courts, which it would not be helpful to describe.

35. No charges were pending against the applicant at the time of the broadcast but viewers were informed that the Gardai were working “very hard” on a new investigation of the applicant and were handling it in a way that “would have been very helpful” in the previous case.

36. The applicant’s solicitor has also referred to the activities of an organisation which, according to the applicant, is engaged in a “campaign” against him. The founding member of the organisation appeared on the RTE programme.

37. Separately, it is said that the settlement of the civil actions by the hospital in 2012 received extensive coverage in the national media.

38. It is submitted on behalf of the applicant that he has been subjected to an unprecedented, active campaign of publicity and that the nature and extent of the cumulative publicity means that it is impossible for him to receive a fair trial.

39. Counsel for the respondent has expressed regret in relation to any prejudicial publicity. However, she says that there has been a lengthy “fade factor” and that none of the material exhibited by the applicant discusses the likely evidence in this case.

40. With reference to the criticism made of the respondent, it is said that the applicant has never sought the assistance of the Director, as was done in the other case mentioned, and that in any event nothing could be done in relation to publicity that occurred before the applicant was charged. The contempt jurisdiction of the courts, and with it the potential obligation of the Director to vindicate fair trial rights by invoking that jurisdiction, can only arise from the date of charge.

Joinder of charges
41. The draft indictment served on the 8th April, 2013, included counts relating to six complainants who had not been the subject of any of the charges sent forward from the District Court. These individuals had made statements of complaint before the applicant was charged on the 31st July, 2012, and summaries of their complaints had been included in the material furnished to the applicant in 2010.

42. The applicant submits that these counts can be validly added only with his consent, which he has not given.

43. The respondent submits that she is entitled to add the counts by virtue of the provisions of s. 4, and in particular s. 4B, 4C and 4M, of the Criminal Procedure Act,1967 as inserted by ss. 8 to 10 of the Criminal Justice Act, 1999.

44. These provisions in effect abolished the old procedure under the Criminal Procedure Act, 1967 whereby a preliminary examination of the case against the accused was carried out in the District Court, with the accused being sent forward for trial only on such charges as, in the opinion of the District Judge, there was a case to meet. Under the original provisions of the 1967 Act, charges could be added to the indictment after the accused had been sent forward only if they arose out of the materials considered by the judge and otherwise complied with the rules relating to indictments.

45. The provisions of s.4 relevant to the instant case stipulate, in the first instance, that the District Court must (save in certain circumstances not applicable here) send an accused forward for trial on an indictable offence. However, the sending forward is not to happen until the documents referred to in s. 4B have been served on the accused. For present purposes, the significant categories of documents referred to in s.4B are those in 4B(1)(a) - a statement of the charges against the accused; 4B(1)(c) - a list of the witnesses the prosecutor proposes to call at the trial; and 4B(1)(d) - a statement of the evidence that is expected to be given by each of them.

46. Copies of each such document are to be furnished to the District Court as soon as they are served on the accused.

47. Section 4C provides in relevant part as follows:

(1) At any time after service of the documents mentioned in section 4B(1), the prosecutor shall cause the following documents to be served on the accused or his solicitor, if any:

(a) a list of any further witnesses the prosecutor proposes to call at the trial

(b) a statement of the evidence that is expected to be given by each witness whose name appears on the list of further witnesses….

(2) As soon as any documents are served in accordance with this section, the prosecutor shall furnish copies of them to the trial court.

48. Sections 4M and 4N are also relevant. Section 4M reads in full:

Where the accused has been sent forward in accordance with this part, the indictment against the accused may include, either in substitution for or in addition to counts charging the offence for which he has been sent forward, any counts that -

(a) are founded on any of the documents served on the accused under section 4B or 4C, and

(b) may lawfully be joined in the same indictment.

49. Section 4N deals with “unrelated” charges as follows:

Where the accused has been sent forward for trial in accordance with this Part, the indictment against the accused may, with the consent of the accused and notwithstanding any other enactment, include counts that -

a) charge an offence justiciable within the State, other than the offence for which the accused was sent forward, and

b) are not founded on the documents served on the accused under section 4B or 4C

and section 25(3) of the Courts (Supplemental Provisions) Act, 1961 shall be construed accordingly.

50. Finally, it is necessary to note Rule 3 of the First Schedule to the Criminal Justice (Administration) Act, 1924:

Charges for any offences may be joined in the same indictment if those charges are founded on the same facts, or form or are a part of a series of offences of the same or a similar character.

51. The respondent says that the new charges are founded upon the documents served under ss. 4b and 4C, as required by s.4M, and that s.4N has no bearing.

Authorities on delay
52. There is no disagreement as to the proper test to be applied in cases of delay. The law relating to this type of case is well settled since the decision of the Supreme Court in the case of S.H. v. Director of Public Prosecutions [2006] 3 IR 575. There is no requirement for the court to inquire into the reasons for the delay or to make any assumption of the truth of the complaints. The issue is whether prejudice has arisen as a result of the delay and, if so, whether it is such as to give rise to a real or serious risk of an unfair trial. Each case falls to be considered on its own facts and in the light of the undoubted power and obligation of the trial judge to ensure a fair trial by means of appropriate rulings and directions. This includes the jurisdiction to withdraw the case from the jury where the trial judge considers that that is the only way to prevent injustice to the accused.

53. In the case of PB v. DPP [2013] IEHC 401, I adopted the analysis of Charleton J. in the case of K. v. His Honour Judge Carroll Moran (unrep., 5th February, 2010) which set out the following nine propositions:

“(1) The High Court should be slow to interfere with a decision by the Director of Public Prosecutions that a prosecution should be brought. The proper forum for the adjudication of guilt in serious criminal cases is, under the Constitution, a trial by judge and jury; D.C. v. DPP [2005] 4 IR 281 at p. 284.

(2) It is to be presumed that an accused person facing a criminal trial will receive a trial in due course of law, one that is fair and abides by constitutional procedures. The trial judge is the primary party to uphold the relevant rights which are: the entitlement of the accused to a fair trial; the right of the community to have serious crime prosecuted; and the right of the victims of crime to have recourse to the forum of criminal trial where there is reasonable evidence and the trial can be fairly conducted; P. C. v. DPP [1999] 2 IR 25 at p. 77 and The People (DPP) v J.T. ( 1988 ) 3 Frewen 141 .

(3) The onus of proof is therefore on the accused, when taking judicial review as an applicant to stop a criminal trial. That onus is discharged only where it is proved that there is a real risk of an unfair trial occurring. In this context, an unfair trial means one where any potential unfairness cannot be avoided by appropriate rulings and directions on the part of the trial Judge. The unfairness of the trial must therefore be unavoidable; Z. v. DPP [1994] 2 I.R. 476 at p. 506 - 507.

(4) In adjudicating on whether a real risk occurs that is unavoidable that an unfair trial will take place, the High Court on judicial review should bear in mind that a District Judge will warn himself or herself, and that a trial Judge will warn a jury that because of the elapse of time between the alleged occurrence of the facts giving rise to the charges, and the trial, that the accused will be handicapped by reason of the lack of precision in the presentation of the case, and the disappearance of evidence such as diaries, or potentially helpful witnesses, or by the normal failure of memory. This form of warning is now standard in all old sexual violence cases and a model form of the warning, not necessarily to be repeated in that form by all trial Judges, as articulated by Haugh J. is to be found in the decision of the Court of Criminal Appeal in The People (DPP) v. E.C. [2006] IECCA 69.

(5) The burden of a proof on an applicant in these cases is not discharged by merely making a general allegation of prejudice by reason of the years that have elapsed between the alleged events and the commencement of the criminal process. Rather, there is a burden on such an applicant to fully and actively engage with the facts of the particular case in order to demonstrate in a specific way how the risk of an unfair trial arises; C.K. v. DPP [2007] IESC 5 and McFarlane v. DPP [2007] 1 IR 134 at p. 144.

(6) Whereas previously the Supreme Court had focused upon an issue as to whether the victim could not reasonably have been expected to make a complaint of sexual violence against the accused, because of the dominion which he had exercised over her, the test now is whether the delay has resulted in prejudice to an accused so as to give rise to a real risk of an unfair trial; H. v. DPP [2006] 3 IR 575 at p. 622.

(7) Additionally, there can be circumstances, which are wholly exceptional, where it would be unfair or unjust to put an accused on trial. Relevant factors include a lengthy elapse of time, old age, the sudden emergence of extreme stress in consequence of the charges, and which are beyond that associated with the normal stress that a person will feel when facing a criminal charge and, lastly, severe ill health; P. T. v. DPP [2007] IESC 39.

(8) Previous cases, insofar as they are referred on the basis of facts that are advocated to be similar, are of limited value. The test as to whether a real risk of an unfair trial has been made out by an applicant, or that an applicant has established the wholly exceptional circumstances that had rendered unfair or unjust to put him on trial, are to be adjudicated in the light of all of the circumstances of the case; H. v. DPP [2006] 3 IR 575 at p. 621.

(9) …it can be the case sometimes that circumstances such as extreme age or very poor health will be contributory factors to an applicant succeeding in making out that a real risk of an unavoidably fair trial is established. Old age and ill health can assist in establishing that there is prejudice by reason of a delay, since memory fails with time and the ability of an accused to instruct counsel with a view to mounting a defence can be, in extreme circumstances, undermined by those factors. Where extreme delay, old age and serious ill health are, of themselves, pleaded as a circumstance which would make it unfair or unjust to put a specific accused on trial then, in the absence of proven prejudice, those circumstances will indeed occur rarely; The People (DPP) v. P. T. [2007] IESC 39 and Sparrow v Minister for Agriculture, Food and Fisheries [2010] IESC 6.”

Authorities on prejudicial publicity
54. In Rattigan v Director of Public Prosecutions [2008] 4 IR 639 the applicant had been charged with murder. In an application before the High Court he complained, in particular, of publication of a newspaper article in which it was asserted that he was the leader of a criminal gang involved in a notorious feud that had resulted in several murders and that members of this gang had been responsible for the murder with which the applicant stood charged. After the High Court had delivered judgment holding against him, and while his appeal was pending, he was the subject of further articles in a number of newspapers. This led to successful applications for interlocutory injunctions against some of the publications in question and a contempt of court motion against one. One article claimed that he had been identified as the killer of the man, the subject of the murder charge. The articles were taken into consideration, as additional evidence, by the Supreme Court in the appeal.

55. Giving the lead judgment of the Supreme Court, Geoghegan J. referred to the well-established principle that the right to a fair trial is superior to that of the community to prosecute crime. However, the latter right, especially in the case of a serious crime, is such that a court would be slow to stop a trial.

“What I mean by that is that a court will only stop a trial if it is satisfied that the normal safeguard procedures in a trial, including the making of appropriate directions, will not, in fact, achieve a fair trial. In practice, this will rarely be the case. As far as adverse pre-trial publicity is concerned, the so called fade factor is most important. If a reasonable time has elapsed between the publicity and the trial, the risk is altogether smaller and this will be especially so if a trial is in a city such as Dublin and not in a small town where a crime has been committed. There cannot be complete avoidance of the risk because even in a case where eleven out of the twelve jurors may never have noticed particular names when reading an article, if they did read it or equally probably may have forgotten the names, there may still be one single juror who did know who the accused was and who may remind his or her fellow jurors of the offending article. Quite frankly, every eventuality cannot be catered for. It should also be borne in mind that in the case of a serious crime, such as murder, where the trial lasts several days or perhaps more, the dangers of an unfair result based on pre-trial publicity will normally reduce as time goes on. By that time the jury will have become accustomed to their judicial role explained to them ad nauseam by the trial judge and counsel on both sides. Furthermore, it must always be borne in mind, as it has been in so many decisions, that there is no evidence to suggest that, in general at least, jurors do not exercise their function properly and with the required independence of mind.”

56. In reaching his final conclusions, Geoghegan J. said that he was of the opinion that he had to consider, as of the date of judgment, the dangers of an unfair trial. He also accepted that some further time would elapse before a trial would commence.

“It would seem to me that as a matter of probability, some potential jurors will not have ever taken in the name of the applicant in the first instance but there is, of course, a danger that when the facts of the case are opened, they may make the association, even if they did not remember the name. There are some who will neither remember the name nor make the association. The newspaper accounts exhibited had been so vivid that there must be a possibility at least that some association will be remembered by one or more jurors and, of course, there is the further possibility, if not likelihood, that one juror in the know may inform his or her colleagues. I am unimpressed by arguments that, in some of the accounts, the applicant is merely viewed as a gang leader or in some way connected with the crime but not the perpetrator of the crime. Nevertheless, in a very serious murder trial, such as this, which is likely to last for quite some time in which therefore the jurors will have become fully attuned to the seriousness of their own position and the seriousness of the functions which they have to perform and above all the long period which will have elapsed from the time of the publication of the articles, even the later ones, I do not consider that it would be either appropriate or necessary for this court to grant the injunction sought.”

57. In Byrne v. The Director of Public Prosecutions [2010] IEHC 382, the applicant sought declaratory relief rather than prohibition. He claimed an entitlement to demand that the DPP search out material on the internet which would be prejudicial to the prospect of a fair trial and to ensure that such material was removed by internet service providers. It was argued that, as a person with no criminal convictions, he was entitled to rely on his character and should not have to risk the possibility that jurors might be influenced by extraneous prejudicial publications.

58. It is a feature of the case that during the first trial of the applicant, the trial judge had found certain material on the websites of some newspapers to be in breach of the Criminal Justice Act, 1967 provisions relating to the reporting of bail applications and had required the removal of that material from the internet. On a later date during the trial, the defence made an application in respect of comments made during the broadcast of a panel discussion show on RTE Radio. At the direction of trial judge, the relevant broadcasts were removed from the podcast area of the RTE website. He also took the view that if any members of the jury had heard the comments in question he would have had to stop the trial, but it transpired that none of them had.

59. A retrial was ultimately ordered by the Court of Criminal Appeal on grounds not relevant to this issue. In advance of the retrial the applicant moved for judicial review.

60. Charleton J. considered that, if the declaratory relief were to be granted a failure by the Director to comply would result in a stay on the trial. The appropriate test to apply was therefore the same as if an order of prohibition had been sought on grounds of adverse publicity. At paragraph 12 of the judgment he said:

“A unified test is now established in relation to delay in the criminal process and adverse pre-trial publicity. Where there is a real and substantial risk of an unfair trial due to either delay in prosecution or adverse publicity, which could not be made fair by appropriate rulings and directions of the trial judge and by other circumstances, the trial should be prohibited; Rattigan v. DPP [2008] 4 IR 639. It is clear, however, that there is a difference between the two circumstances of delay and unfair publicity. Over time, pre-trial publicity can fade and render what would have been the risk of an unfair trial had it taken place immediately, a safe exercise in justice several months later. Prosecutorial delay is, on the other hand, something that has happened; the passage of time will make it worse and not better.”

61. Charleton J. considered that on the facts of the case the applicant had not made out a case for relief. None of the extensive speculation about the actual offence referred to the applicant and there was no connection made with him. The coverage of factual matters, such as the trial judge’s remarks in sentencing or the interviews given by a victim of the crime, did not contain anything untrue or unfair.

62. In O’Brien v. Director of Public Prosecutions [2014] IESC 39 (Supreme Court, 14th May, 2014) the applicant had been charged in September and November 2012 with a number of counts of theft and deception arising from what was alleged to be a type of “pyramid” or “Ponzi” scheme. The charges alleged commission of the offences between December, 2003 and November, 2008. The applicant sought prohibition on the basis of an argument that he could not, at the time or in the future, receive a fair trial by reason of substantial and ongoing adverse publicity.

63. The evidence before the High Court fell into four categories:- remarks made in January, 2009 by the judge presiding over litigation concerning the applicant in the Commercial Court, which had been widely reported; a chapter, devoted to his case, in a book published by a journalist in 2010; numerous articles “many of a lurid and sensational nature”, contained in newspapers published between 2008 and 2012 and a television documentary about “con artists” in Ireland, broadcast twice in 2012 and once in January 2013. The President of the High Court did not consider that the case warranted an order of prohibition. However, he did consider that the broadcasts, combined with the huge volume of printed newspaper articles, were such as to suggest that a trial in the immediate future would be attended by an “appreciable risk of an unavoidably unfair trial”. He therefore refused an order of prohibition but granted a temporary stay on the proceedings for a period of twelve months.

64. In the applicant’s appeal, the argument appears to have concentrated on the consequences of the Commercial Court hearing, involving a great deal of case-law which is not relevant here. However, it is worth noting that the Supreme Court observed that a very long period of time had elapsed since the remarks were made, sufficient to allow the public memory to fade. Similarly, the various publications had been a significant length of time previously, while the January 2013 broadcast was said to have had low audience figures. The Court concluded that there was no longer a real risk of an unfair trial.

The applicant’s submissions
65. On behalf of the applicant, Mr. Hartnett S.C. submits that, having regard to decision of the Supreme Court in S.H. v DPP [2006] 3 IR 575, there are two issues to be determined. The first is whether there is a real risk that the applicant will not receive a fair trial. The second is whether it is fair to try the applicant in the circumstances.

66. The significant factual matters to be considered are summarised as being:

• The absence of medical records in a number of cases;

• The impossibility of identifying any nursing staff who might have been present when any particular complainant was being treated;

• The impossibility of identifying witnesses such as doctors who would be in a position to give evidence on behalf of the applicant;

• The unwillingness on the part of at least some of the complainants to permit the Gardaí to interview family members;

• The “very significant” publicity, including the Dail debates and press coverage after the earlier acquittals, the RTE broadcast and the publicity arising from the settlement of the civil actions by the hospital.

67. It is submitted, with reference to R.B. v. DPP [2004] IEHC 424, that the delay involved leads to a presumption of prejudice.

68. It is also submitted, in reliance on the judgment of Kearns J. in DPP v. CC (Unrep., Court of Criminal Appeal, 2nd February, 2006) that the prejudice is increased exponentially because of the number of allegations and complainants proposed to be dealt with on one indictment.

69. The second issue is whether it is fair to try the applicant in all the circumstances. The authority relied upon most significantly on this aspect is P.T. v. DPP [2007] IESC 39, where the applicant was unable to show specific prejudice but nonetheless obtained an order of prohibition because, primarily, of his age and state of health. Mr. Hartnett points to the age of this applicant; the reports in relation to his health and declining memory; the antiquity of the alleged offences; the lapse of time between the interviews and the decision to bring charges; and the timing of the actual charging (four weeks after the settlement in the civil litigation).

Respondent’s submissions
70. On behalf of the respondent it is submitted by Ms. McDonagh SC that there is an onus on the applicant to show specific prejudice and that he has failed to discharge that onus.

71. P.T. v DPP is distinguished on the basis that the evidence in that case was that a trial might cause the death of the applicant. While it accepted that the applicant is 81 years old, in declining health and may have some attentional deficit, these are matters that can be taken into account by the trial judge in the running of the trial.

72. It is suggested that the applicant has failed to show sufficient endeavour to find witnesses who might be helpful to him, such as nurses or secretaries.

73. In relation to criticisms made by the applicant regarding the fact that family members to whom the complainants say they spoke have not been interviewed, and that their unavailability deprives the applicant of an opportunity to test the complainants’ credibility, the point is made that this is not an issue arising from delay. It could happen in any case, no matter how recent.

74. On the joinder of additional counts, the respondent contends that the relevant statutory provisions permit her to do it but that, in any event, improper joinder could never be a ground for a permanent injunction.

Discussion and conclusions
75. Applying the principles set out above, it seems to me that neither the issue of delay, including his state of health, nor the prejudicial publicity would, in themselves, be sufficient to warrant the granting of an injunction.

76. Since the reason for complainant delay is no longer a relevant area of inquiry for the court, the issues are, as stated above, whether the delay in the case is such as to create a real risk of an unfair trial; and whether it would be unfair to try the applicant.

77. It is true that some of the charges are exceedingly old, even by the standards of some of the trials that have come before the courts in the last fifteen or twenty years. It is also true that the applicant, having regard to his profession, can be expected to have particular difficulty in recollecting individual patients over such a lengthy period of time. However, the same problem has arisen in many cases involving teachers and it is clear that it is not considered to be a bar to proceeding with a prosecution.

78. It is also the case that delay leads to the loss of witnesses, and deterioration in the memories of those that remain, but that is a feature in all of the cases that have been decided on this issue.

79. Counsel for the applicant points to the two statements disclosed during the hearing in this court, which tended to disprove assertions by the two complainants in question that they had made contemporary complaints, and asks whether it can be presumed that other such evidence would not have been available if the case had been brought forward at an earlier time. However, it is not for this court to speculate along those lines. It is the task of a trial judge to ensure that a jury is properly directed as to the difficulties faced by an accused in this type of case. It is also within the trial judge’s powers to stop the trial if that is necessary to prevent unfairness, which may become more apparent when witnesses give their evidence and any inherent frailties are exposed. To prevent a trial from getting off the ground, however, there is a clear onus on the applicant to demonstrate that the passage of time has caused identifiable prejudice. 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.

80. The applicant is by now an elderly man, and obviously has health issues that might be expected at his age. However the evidence in this regard does not appear to approach the level of that in P.T. and is insufficient to warrant an injunction.

81. There is no doubt as to the level of publicity that has centred on the applicant at certain times. However, there has not yet been a case where the courts have been minded to grant more than a temporary stay on prosecution because of publicity and I do not think that this particular case is unique to the extent claimed. The cases referred to above also involved extensive and damaging coverage of the applicants, but in each case it was considered that a fair trial was possible. Lapse of time, coupled, again, with the obligation of the trial judge to warn the jury not to rely on any thing other than the evidence given before them, is considered to be a sufficient safeguard.

82. If material of the sort put before the court in this case were to be published after a person had been charged, it would be likely to result in the bringing of contempt charges against the publisher but that clearly does not arise in the circumstances. Where no criminal charges are in being, the media are restrained only by the law of defamation if they wish to publish investigative stories. A person, the subject of such investigations, does not thereby acquire immunity from prosecution on future charges. A truthful publication, when no charge is pending, could not have such an effect. There might well be, in appropriate circumstances, a right to a temporary stay but that is a matter that does not really arise here - the applicant was charged on the 31stJuly, 2012. No publicity has arisen since then. The RTE broadcast was some three years before that.

83. As Geoghegan J. pointed out in the passage cited above, it will always be impossible to ensure that no juror has heard anything adverse about an accused. Not every eventuality can be catered for.

84. I have considered particularly carefully the possibility that the adverse publicity has in itself made it more difficult for the applicant to call on witnesses who he might expect to be able to help him. It is the case that the RTE broadcast could potentially have that effect. However, it seems to me 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.

85. I have also considered whether I should, although finding that neither of these grounds is in itself sufficient, take the view that the cumulative effect is such as to either create the risk of an unfair trial or make it unfair to put the applicant on trial. On balance I think that I should not.

86. It is true that, by and large, the authorities on delay do not involve major concerns about publicity while, as it happens, the applicants in the prejudicial publicity cases were relatively young men accused of relatively recent crimes. However, it does not follow that where both elements are found together, there must necessarily be a cumulative effect of unfairness. If it cannot be said, as a matter of law, that the prejudicial publicity in the case has created a risk of unfairness to this applicant, it follows that that aspect cannot be brought back into the case to be used as an additional ingredient in an overall claim of unfairness.

87. Finally, there is the issue of the additional charges. On this aspect, I consider 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 is intended to relate to the charges brought against the accused person at that point in time. Section 4C permits service of additional evidence relating to those charges. Section 4M provides for the addition of additional charges if they arise from the material served under ss. 4B and 4C. Section 4N is the provision permitting the joinder of charges not arising from that material, and it requires the consent of the accused. Rule 3 of the First Schedule is not relevant to the issue - it deals with the broader question as to what kind of charges may lawfully be dealt with in the same trial. It allows a person to be charged with multiple counts, but it does not govern the question of joinder of new counts.

88. However, I agree with the respondent that this is not a basis upon which to grant a permanent injunction, or even an injunction restraining prosecution on this particular indictment. As I understand it, all that has been served so far is a draft document. Apart from anything else, it is a matter which should in the first instance be raised in the Circuit Court whether be way of preliminary application in the list or before the trial judge.

89. In the circumstances I refuse the relief sought.

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> M.S. -v- Director of Public Prosecutions & ors [2015] IEHC 84 (17 February 2015) URL: http://www.bailii.org/ie/cases/IEHC/2015/H84.html Cite as: [2015] IEHC 84

High Court of Ireland Decisions