D.P.P. v. Kelly [1996] IEHC 11; [1996] 2 IR 596; [1997] 1 ILRM 497 (30th August, 1996)

(b) On 13th May, 1993, the Notice Party's Solicitors were asked whether they would accept notice pursuant to Section 21 of the Criminal Justice Act, 1984 in relation to the evidence of Dr. Brian McCarthy, who had examined the female complainant in the Meath Hospital on 12th July, 1992 and a statement of whose evidence had been served on the Notice Party pursuant to the Criminal Procedure Act, 1967, because it was apprehended that Dr. McCarthy would be in the United States of America at the trial date, or, alternatively, whether they would consent to the trial being brought forward. On the advice of Counsel, the Notice Party's Solicitors declined to accept a notice under Section 21. They were not in a position to deal with the trial during the then current legal term, which was due to terminate on 27th May, 1993 and so advised the Chief State Solicitor's office. In the events, no application was made to have the trial brought forward.

(c) Dr. McCarthy had in fact left this jurisdiction around the end of May 1993 without notifying the Gardai. Notwithstanding that he had agreed to return to Dublin for the trial and that airline tickets were provided by the Applicant for that purpose and accommodation was arranged for him, Dr. McCarthy failed to attend in Court on 23rd June, 1993. Being satisfied that all reasonable steps had been taken by the Applicant to procure Dr. McCarthy's attendance, the trial was adjourned by the learned trial Judge (the Respondent) and it was ultimately re-listed for hearing on 24th November, 1993.

(e) As a result of enquiries made on the 24th and 25th February, 1994, the Notice Party's Solicitors were apprised that Dr. McCarthy would not be present at the trial on 1st March, 1994 and would not be available for cross-examination, but that it was the intention of the Applicant to proceed with the trial. By Order of this Court made by Geoghegan J. on 28th February, 1994 in a matter entitled "Jason Keogh, Applicant and The Director of Public Prosecutions and His Honour Judge Michael Moriarty, Respondents" (Record No. J.R. 80 / 1994), the Notice Party was granted leave to apply for an Order of Prohibition in respect of the trial and the trial was stayed until the determination of the application for judicial review. Subsequently, the 1994 judicial review proceedings were "settled", save in regard to costs, on the Applicant procuring a written commitment from Dr. McCarthy to attend the trial. This settlement is reflected in an Order of this Court made on 15th June, 1994 by the President in which it was ordered that the judicial review proceedings be struck out by consent. The President adjudicated on an application by the Notice Party for his costs of the judicial review proceedings and refused that application.

(f) The trial was re-listed for hearing on 5th December, 1994. It became apparent at the end of November 1994 that Dr. McCarthy would not be available to give evidence on 5th December, 1994. The matter was listed for mention before the Respondent on 1st December, 1994. Counsel for the Notice Party submitted that Dr. McCarthy was an essential witness for the defence and that the Notice Party could be deprived of a fair trial were he not made available for cross-examination. The Respondent, having indicated that, in his view, the trial should not proceed in the absence of Dr. McCarthy, directed that the matter be left in the list for trial, but he indicated that he would direct the jury to acquit the Notice Party should Dr. McCarthy not be available.

(g) Dr. McCarthy was not in attendance on 5th December, 1994. Senior Counsel, who had been instructed by the Applicant in the 1994 judicial review proceedings, appeared before the Respondent and requested him not to embark on the course he had indicated and to proceed with the trial. When the Respondent indicated that he intended to direct the jury which had been empanelled to acquit the Notice Party, Counsel for the Applicant who was prosecuting the charges before the Respondent applied for an adjournment due to the absence of Dr. McCarthy, but the application was refused. The Respondent then directed the jury to acquit the Notice Party. It is common case that at no stage was any evidence heard by the Respondent or the jury in relation to the charges laid against the Notice Party, although the Order dated 5th December, 1994 recites that, the Court "having heard evidence tendered and submissions made on behalf of the respective parties in the absence of the jury", directed the jury to find the Notice Party not guilty.

3. The issues which confronted the Respondent on 5th December, 1994 were whether the Notice Party could be deprived of a fair trial if Dr. McCarthy was not made available for cross-examination, as contended for by the Notice Party, and, if so, how he should redress that potential injustice. It is to be inferred from the course adopted by the Respondent that he had formed the view that the Notice Party could be deprived of a fair trial. Moreover, there was evidence before this Court that he had indeed formed such a view. In an Affidavit sworn on 10th July, 1996 Garrett Sheehan, the Notice Party's Solicitor, averred as follows:-

"I say that when giving his decision on 5th December 1994, the Learned Respondent indicated as the basis for his decision, that the missing witness was an extremely important witness, and that he had deliberately refused to attend Court. He indicated that it was a serious case of sexual assault, and that the evidence of the missing witness was capable of rebutting certain of the allegations of the complainant, and it was his opinion that it would be highly prejudicial to the Notice Party if he was denied an opportunity to cross-examine this witness."

4. While contending that there was in fact no basis upon which the Respondent could hold that the Notice Party could be deprived of a fair trial, it was submitted on behalf of the Applicant that, in any event, the Respondent had no jurisdiction to direct the jury to acquit the Notice Party without hearing any evidence and that, in purporting to do so, he exceeded his jurisdiction. The only courses open to the Respondent to prevent what it was contended by the Notice Party would be an unfair trial, it was submitted on behalf of the Applicant, were to grant an adjournment or to stay the indictment pending an application to this Court for an Order of Prohibition. Counsel on behalf of the Notice Party submitted that, having found that it would be unfair and potentially prejudicial to allow the trial to proceed in the absence of Dr. McCarthy, which it was contended was a proper finding, the Respondent had a number of options available to him: to adjourn the trial for mention at a later date or generally; or to stay the indictment permanently; or to terminate the proceedings by directing the jury to acquit the Notice Party, which, it was argued, would have the same effect as a permanent stay on the indictment. In pursuing the last option, it was contended, the Respondent did not exceed his jurisdiction.

5. It is not in issue, nor could it be, that the Notice Party is entitled to be tried "in due course of law" under Article 38 of the Constitution and that it was the obligation of the Respondent to ensure that his trial should be conducted in accordance with the concept of justice, that the procedures applied should be fair, and that he should afforded every opportunity to defend himself, which is the right of every accused person as outlined by the Supreme Court in The State (Healy) -v- Donoghue (1976) I.R. 325 (per O'Higgins C.J. at page 349). What is in issue is whether the Notice Party could have been deprived of trial "in due course of law" had the Respondent allowed the trial to proceed in the absence of Dr. McCarthy on 5th December, 1994 and the extent of the jurisdiction of the Respondent to resolve that question once it was raised.

6. I have no doubt that, in a criminal trial on indictment, a trial Judge has no jurisdiction to direct the jury to find the accused person not guilty where the prosecution has not been allowed to open its case or to adduce any evidence. While no authority was cited in support of this proposition, it seems to me that a conclusion to the contrary would be so fundamentally at variance with principle as to be wholly unsustainable.

7. Moreover, in the case of a criminal trial on indictment in the Circuit Criminal Court, the Supreme Court has indicated the procedure to be followed when an issue is raised as to whether the accused person will be tried "in due course of law" if the trial proceeds: the accused person should be given an opportunity to seek an Order of Prohibition from this Court. In The State (O'Connell) -v- Fawsitt (1986) I.R. 362, a case in which the issue was whether an accused person had been deprived of a trial with reasonable expedition and, in consequence, would be deprived of a trial "in due course of law", Finlay C.J. stated as follows at page 379:-

"I am satisfied that if a person's trial has been excessively delayed so as to prejudice his chance of obtaining a fair trial, then the appropriate remedy by which the constitutional rights of such an individual can be defended and protected is by an order of prohibition. It may well be that an equal remedy or an alternative remedy in summary cases is an application to the Justice concerned to dismiss because of the delay. In the case of a trial on an indictable charge, however, I am not satisfied that it is correct to leave to the trial judge a discretion as to whether, as it were, to prohibit himself from letting the indictment go forward or whether to let the indictment go forward. A person charged with an indictable offence and whose chances of a fair trial have been prejudiced by excessive delay should not be put to the risk of being arraigned and pleading before the jury."

8. On the facts in that case, Finlay C.J. concluded that there had been excessive delay prejudicial to the Applicant's chance of a fair trial, the determining feature being the non-availability of one of the witnesses who would have been a material witness for the defence, who had been available and willing to give evidence at an earlier stage.

"In that case, the Court was concerned in particular with the decision of Murphy J. in the High Court which having concluded that there were substantial grounds for considering that a fair trial had been imperilled by an excessive delay, he nonetheless felt that it was more appropriate to leave it to the trial judge to decide that before the commencement of the hearing of the trial.

10. I am satisfied that the Respondent exceeded his jurisdiction in purporting to direct the jury to acquit the Notice Party. Moreover, I am satisfied that, if the Order of Certiorari sought by the Applicant was granted by this Court and if the matter was remitted to the Circuit Criminal Court, the Notice Party could not plead autrefois acquit, his acquittal being based on an adjudication which was in excess of jurisdiction, which was no adjudication at all ( The State (Tynan) -v- Keane (1968) I.R. 348).

11. Certiorari is a discretionary remedy and the power to remit given to this Court under Order 84, Rule 26(4) is a discretionary power. The substantive issue between the parties, namely, whether the Notice Party could be deprived of a fair trial if Dr. McCarthy was not available for cross-examination at his trial, has already been the subject of the 1994 judicial review proceedings in this Court, which were dealt with by the Applicant in a manner which suggests that it was perceived by the Applicant that there was some merit in the Notice Party's stance. In my view, having regard to the history of this matter, the interests of justice would not be served if this Court, without adjudicating on the substantive issue, were to quash the Order of 5th December, 1994 and to remit the matter to the Circuit Criminal Court with a direction to the Respondent to reconsider the matter. The substantive issue was debated on this application and it seems to me that I should adjudicate on that issue and that I should refuse the relief sought by the Applicant if I conclude that the Notice Party could be deprived of a fair trial if Dr. McCarthy was not available to give evidence at his trial.

12. In the statement made by her which is in the Book of Evidence, the complainant alleged that the Notice Party dragged her from a roadway along which she was walking on to the centre of a green area, that he then pushed her to the ground and lay on top of her. She further alleged that he held her down by keeping a hand on her chest, her arms or her mouth, and that he sexually assaulted her with his hands, but he was unable to put his finger inside her vagina because she was wearing a tampon. In a statement which was taken by a member of the Garda Siochana from the Notice Party on 8th August, 1992, after caution, which is also in the Book of Evidence, the Notice Party alleged that the complainant had gone voluntarily to the green area and that he had had sexual intercourse with her with her consent. In his statement, which is also in the Book of Evidence, Dr. McCarthy stated that on examination of the complainant in the Accident & Emergency Department of the Meath Hospital, she had no bruises or abrasions to her neck, ribs or sternum. Her abdomen was soft and non-tender. Due to her profound distress, it was not possible to examine her to ascertain whether she had actually been penetrated by her assailant.

13. The basis of the Notice Party's contention that it is essential to his defence that Dr. McCarthy give evidence is encapsulated in the following averments contained in the Affidavit sworn by Mr. Sheehan on 28th February, 1994 to ground the Notice Party's application for an Order of Prohibition in the 1994 judicial review proceedings, which was put in evidence on this application:-

"This matter was subsequently discussed with the Counsel who I had retained, and he indicated that we would most definitely require the doctor to be present at the trial in order that he could be cross-examined as to the injuries which (the complainant) had received, and as to the absence of certain other injuries to her body which might have been expected if her statement was true. Counsel was also concerned that there were certain matters of opinion in the statement of the doctor served upon the Applicant which should not be allowed to go to the jury without being clarified or challenged...

I have been advised by Counsel and believe that Dr. Brian McCarthy is an essential witness in this case and that he wishes to cross-examine him in relation to various of his findings and in relation to his clinical notes. In particular, he wishes to positively establish that there was neither bruising or laceration to the (complainant's) mouth, and further wishes to cross-examine him as to what the complainant may have said to him when he enquired of her as to whether she had been sexually penetrated by the Applicant."

14. The argument advanced on behalf of the Applicant was that, even in the absence of Dr. McCarthy, the evidence set forth in the Book of Evidence presents a prima facie case against the Notice Party. Dr. McCarthy is not an essential prosecution witness and the prosecution case does not hinge on his evidence. The complainant did not allege any injury other than a broken arm and Dr. McCarthy found no injury other than a broken arm and the absence of any other injury can be commented upon by another doctor, for instance, Mr. Pegum, the Consultant Orthopaedic Surgeon under whose care the complainant was.

15. The Applicant's argument, in my view, does not address the point made by the Notice Party. The Notice Party is not contending that the trial should not be proceed because Dr. McCarthy's evidence is crucial to the prosecution case, but because his defence may be impaired because of the absence of Dr. McCarthy's evidence.

16. It seems to me that the position of the Notice Party is analogous to the position of the Applicant in Murphy -v- DPP (1989) I.L.R.M. 71. The Applicant in that case was charged with offences alleged to have been committed while he was driving a motor vehicle. His solicitor wrote to the Gardai requesting sight of the results of any forensic examination of the vehicle and informing them that the Applicant wished to have the vehicle examined by a professional expert in the field of fingerprints. The vehicle, which had been in a wrecked condition, was subsequently removed from Garda custody by an insurance company which was interested in its salvage value. No forensic examination was carried out by the Gardai and the Applicant was unable to procure his own forensic examination. In his judgment, Lynch J., who granted an injunction restraining the further prosecution of the charges concerning the alleged offences in relation to driving the car, stated as follows at page 76:-

".... the Gardai's action in the circumstances amount to a breach of the rule of fair procedures. The applicant has accepted that he was in the stolen car unlawfully when it crashed but he has denied driving it. The court of trial will now have only the evidence of Garda visual identification and of the applicant's denial upon which to base its decision. It has in effect been deprived of possible corroborative evidence of the applicant's denial. Consequently, I am satisfied that the applicant's opportunities of defending his case have been materially affected to his detriment.

It may well be that nothing would have been discovered by the requested forensic inspection, but the applicant has been deprived of the reasonable possibility of rebutting the evidence proffered against him. It is also clear that there is no way in which this loss to the applicant of possibly corroborative evidence, can now be remedied by any further inspection of the car."

17. It is true that in this case, after the initial postponement of the trial, no fault can be ascribed to the Gardai or the Applicant for the failure of Dr. McCarthy to return to this jurisdiction to testify. All reasonable efforts were made to procure his attendance. Notwithstanding this, in my view, in its crucial aspect this case is indistinguishable from Murphy -v- DPP . Dr. McCarthy carried out a clinical examination of the complainant within a couple of hours of the alleged sexual assault, which his statement suggests involved taking a history from her. His evidence, were it available, would be singularly compelling in corroborating either the complainant's allegation of sexual assault or the Notice Party's denial. The evidence of the Consultant Orthopaedic Surgeon, who subsequently operated on the complainant's arm, could not be as germane to the issues of fact raised by the defence as Dr. McCarthy's evidence and could not have the same impact. Since the possibility of Dr. McCarthy's non-availability was raised in May 1993, the Notice Party has consistently contended that he would be unfairly prejudiced in his defence if his trial proceeded in the absence of Dr. McCarthy. It might well be that cross-examination of Dr. McCarthy would not assist in his defence. However, if the trial were to proceed in his absence (which seems inevitable if it is to proceed), the Notice Party would be deprived of the reasonable possibility of rebutting the evidence proffered against him. I agree with the view expressed by the Respondent that this situation has the potential of being highly prejudicial to the Notice Party and I consider that it materially affects his ability to defend himself. On this ground, I refuse to quash the Order of 5th December, 1994.

18. The Notice Party also opposed the Applicant's application on the ground that it would be unfair to the Notice Party to try him for the alleged offences in view of the lapse of time since the date of the alleged offences and in view of the delay on the part of the Applicant in applying for an Order of Certiorari. Order 84, Rule 21(1) provides that an application for leave to apply for judicial review shall be made promptly and in any event within six months from the date when grounds for the application first arose, where the relief sought is certiorari. In this case, the application for leave was made just four days short of the expiration of the six month period. Having regard to all of the circumstances, I am of the view that the application for certiorari should also fail because of the delay factor. The Notice Party has had to face trial on serious charges on five separate occasions over a two year span. He has been arraigned and has pleaded before the jury, which was directed to acquit him, more than twenty months ago. Over four years have already elapsed since the date of the alleged offences. Aside from the non-availability of Dr. McCarthy as a witness, in my view, the Notice Party could not be afforded a trial with reasonable expedition, which is his entitlement under the Constitution, if the Order of 5th December, 1994 was quashed and the matter was remitted to the Circuit Criminal Court. In reaching this conclusion, I have not overlooked the fact that the complainant has had to face the prospect of a trial and the ordeal of testifying on five occasions in the past and has had the matter hanging over her for over four years to no avail, or the requirement in an ordered society to deal effectively with crime and, in particular, serious offences.

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> D.P.P. v. Kelly [1996] IEHC 11; [1996] 2 IR 596; [1997] 1 ILRM 497 (30th August, 1996) URL: http://www.bailii.org/ie/cases/IEHC/1996/11.html Cite as: [1996] 2 IR 596, [1997] 1 ILRM 497, [1996] IEHC 11

High Court of Ireland Decisions

D.P.P. v. Kelly [1996] IEHC 11; [1996] 2 IR 596; [1997] 1 ILRM 497 (30th August, 1996)