High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O'C. (J.) v. D.P.P [2002] IEHC 151 (8 October 2002)
URL: http://www.bailii.org/ie/cases/IEHC/2002/151.html
Cite as: [2002] IEHC 151
|
|
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
High Court of Ireland Decisions |
||
|
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O'C. (J.) v. D.P.P [2002] IEHC 151 (8 October 2002) URL: http://www.bailii.org/ie/cases/IEHC/2002/151.html Cite as: [2002] IEHC 151 |
||
[New search] [Printable RTF version] [Help]
Rec. No. 2001/282 JR
BETWEEN
APPLICANT
RESPONDENT
JUDGMENT of Mr. Justice Michael Peart delivered the 8th day of October 2002.
By order of this Court dated the 30th of April 2001, Mr. Justice Barr granted to the applicant leave to apply by way of application for judicial review for the following reliefs:-
(i) An order of prohibition by way of judicial review restraining the Respondent herein from proceeding with the further prosecution of the charges herein;
(ii) In the alternative, an injunction by way of Judicial Review restraining the Respondent from proceeding with the further prosecution of the said charges.
The grounds upon which this relief is sought are those set out at paragraph E of the applicant's Statement Grounding Application for Judicial Review (as mended by order of Barr J. dated 30th April 2001) as follows:
(i) The further prosecution of the charges herein would be contrary to natural and constitutional justice in that the offences charged are alleged to have occurred between 1974 and 1978 and the applicant has been diagnosed as suffering from early Alzheimer's disease which prejudices his ability to fully and properly defend himself.
(ii) There is a real and substantial risk that any trial of the applicant will be unfair having regard to the time at which the alleged offences occurred and the medical condition of the applicant.
(iii) The applicant has been prejudiced in his defence of the charges by reason of the fact that he suffers from early Alzheimer's disease which restricts his ability to properly and fully defend himself, which condition he would not be suffering from if the prosecution had been brought in good time.
This application is grounded upon an affidavit of the applicant's solicitor, Liam Guidera sworn the 27th April 2001 and the exhibits referred to therein, and the affidavit of Joyce Pickett sworn the 27th April 2001 and the exhibits referred to therein, she being a Consultant Psychiatrist attached to St. Ita's Hospital, Portrane who specialises in geriatric psychiatry. These affidavits support the applicant's contention that, as a result of the fact that in November/ December 2000, a CT scan for the first time has shown what are described as atrophic changes, i.e. brain shrinkage, which are stated to indicate the onset and existence of early Alzheimer's disease. In addition, certain blood tests were carried out which, though described as "essentially normal", nevertheless did show a low vitamin B12 level which could contribute to memory loss.
Mr. Guidera's affidavit states that on the 2nd November 2000, the applicant had been present with members of his family at a consultation with Mr. Guidera and with both senior and junior counsel, where the applicant appeared to be confused in his recollection of many details, and appeared to be unable to marshal facts to support and explain what recollection of relevant events he had, and that when the applicant gave answers to questions put to him, he was unable to give any cogent reason to explain or justify the answer. Mr. Guidera and counsel decided to terminate the consultation in order to give the applicant an opportunity to clarify his recollections and to prepare in advance for a further consultation.
As deposed to by Mr. Guidera, a further consultation was arranged for two weeks later on the 16th November 2000, but that on this occasion the applicant seemed even more confused than on the previous occasion. It was as a result of this experience that the applicant's legal advisors sought medical reports from the applicant's general practitioner, Dr. Grennan who in due course referred the applicant to Dr. Joyce Pickett, consultant psychiatrist, as they thought there might be some medical condition giving rise to the applicant's inability to answer questions, and give cogent reasons for his answers, if any.
The applicant's submission is that as a result of the fact that he has now been clinically diagnosed as suffering from the onset of early Alzheimer's disease, he is unable to fully and properly defend himself, and that there is accordingly a real and substantial risk that any trial of the offences with which the applicant is charged would be unfair having regard to the time at which the offences are alleged to have been committed, that is, between the 20th October 1974 and the 20th October 1978, and the applicant's medical condition.
The Respondent, in opposing the applicant's application does so on two grounds:
(i) That the issue as to whether the applicant can have a fair trial of the offences alleged against him, having regard to the time at which the alleged offences occurred, has already been determined by the Supreme Court in an earlier application for similar relief in proceedings bearing Record No. 1998 No. 64 JR, and that the applicant is bound by that determination; and
(ii) That the issue as to whether or not the applicant is fit to plead is a matter for the trial judge in due course.
At this point it is worth noting that the Respondent also arranged for an examination of the applicant to be carried out on its behalf by Mr. Paul McCarthy, consultant psychiatrist. A copy of that report is contained at exhibit D of the said affidavit of Liam Guidera. In this report, Mr. McCarthy, having "noted specially the atrophic brain deterioration that had been shown in the CT scan", concludes as follows:
"although past memories are retained, and although he can reason quite well during conversation, the evidence would seem to be increasing that, not only is his capacity for recent memory declining significantly, but that he can become distressed and confused when under pressure. His contentment in his retirement has been largely destroyed by the allegations which he totally denies. His resultant chronic anxiety state has certainly been unhelpful in his coping with his early dementia, but whatever the understanding, I would have little doubt but that his condition would place him in an unfair position in a courtroom scene. He could have full understanding beforehand, but would very likely become genuinely confused under cross-examination."
It is clear from these conclusions by the Respondent's own medical advisor in relation to the plaintiff that there is no dispute between the parties as to the applicant's medical condition (i.e. early Alzheimer's disease), and as to the difficulties which this poses and will continue to pose for the applicant, perhaps even to an increasing extent, in relation to any trial in the future. The Respondent's opposition to the application is based, not on any contest as to the medical evidence or what flows from it, but rather on the grounds already stated, namely that this matter has already been decided by the Supreme Court against the applicant, and that it is therefore "res judicata", and also that the matter should be left to the trial judge who can deal with the matter at trial as to the applicant's "fitness to plead", in the normal way under section 2 of the Criminal Lunatics Act 1800, and where so found by a jury to be unfit to plead, to be detained in the Central Mental Hospital at the pleasure of the Government.
Before dealing in greater detail with the evidence in the present application, and the submissions made by both parties, it is necessary to understand what was decided in the earlier proceedings by the Supreme Court already referred to, particularly in view of the second plank of the Respondent's argument, namely that the question as to whether the applicant can have a fair trial is already decided and cannot be reopened.
In those proceedings the applicant sought an order by way of judicial review, prohibiting the Respondent from proceeding with the same charges as are the subject of the present application, on the following grounds:-
(1) The applicant has been deprived of his right to a trial with due expedition by virtue of the delay in bringing the proceedings;
(2) The applicant has been prejudiced in his defence of these proceedings by virtue of delay bringing these proceedings;
(3) The applicant has been prejudiced in his defence of these proceedings by virtue of the lack of specificity in the charges alleged.
While the then President of the High Court (Morris P.) by order dated the 25th November 1998 granted the injunction sought, the Respondent appealed that order to the Supreme Court, which by a majority, reversed the said order. In those proceedings the basis upon which the applicant had submitted that he was prejudiced as to a fair trial were as follows:
(1) That his wife had died on the 12th March 1993, and that were she alive to give evidence, she would have been able to give relevant evidence to assist the applicant's denial of the charges. The details of exactly what evidence he stated she could have given do not matter for the present purposes. Suffice to say that the Supreme Court decided that her absence was not a factor sufficient to expose the applicant to an unfair trial.
(2) That because of the general nature of the allegations, and the lack of specificity and detail in the charges brought against him, the applicant was unable to instruct his solicitor and counsel as to whether he might have an alibi witness, or as to any other factor which might affect the credibility of the complainant or himself. However the Supreme Court found that in cases of this nature, such lack of detail is almost inevitable, and not such as to unfairly prejudice a trial.
(3) That he suffers from a severe heart condition, as well as diabetes, and that the bringing of the charges against him has resulted in great stress and anxiety for him. However it was held by the Supreme Court that the applicant's state of health as outlined to the Court, would not, of itself, affect his ability to defend himself.
In relation to the respondent's opposition to the present application on the basis that the issue as to whether the applicant can get a fair trial has already been decided by the Supreme Court, and that the matter cannot therefore be reopened, I cannot agree, given the evidence contained in the affidavits grounding the present application. It seems perfectly clear that the earlier case was decided, in relation to the applicant's health, on the basis that he was suffering from a heart condition, from diabetes, and from a significant degree of stress and anxiety as a result of the charges brought against him. It is only in the light of these ailments and conditions that the Supreme Court ruled as it did. The diagnosis of early Alzheimer's disease was not made, and perhaps for all we know, could not have been made, until November/December 2000, some two years after the first application came on for hearing before the then President of the High Court on the 13th November 1998. The grounds now sought to be replied upon is an entirely new ground of ill health not then known. It is clear that the possibility that the applicant might not have a fair trial, based upon his present condition has not been decided upon in the earlier case, and can therefore be the subject of a new application in accordance with the judgment of the Supreme Court in Re Application of Michael Woods (1970) IR 154. At page 162 of that judgment, 0 Dalaigh C.J. stated:
"Such matters as are considered by the Supreme Court in its judgment are finally decided before the High Court. But this will not preclude an applicant from later raising a new ground, even though that ground might have been, but was not, put forward on the first application."
Although that case involved an application for habeas corpus, there is no reason why the principle should not apply in the present case, and particularly where, as in the present case, it is likely or even probable, that at the time of the first decision, the applicant may not even have begun to suffer from early Alzheimer's disease, as he now clearly is according to the evidence.
The second plank of the Respondent's opposition is that the bringing of an application by way of Judicial Review to restrain the further prosecution of the charges is inappropriate, and that the proper procedure is to leave the question of the applicant's fitness to plead to the charges, to the trial judge who can give any necessary directions to the jury in relation thereto, or can decide to put a preliminary issue to a jury as to the applicant's fitness to plead, under the procedures contained in section 2 of the Criminal Lunatics Act 1800. However, as submitted by counsel for the applicant, the applicant is not making the case that he is "unfit to plead" in the manner contemplated by that section, which is predicated upon the applicant or indeed the prosecution, maintaining that at the time of the commission of the acts alleged to constitute the offences charged, the applicant was insane, and in some cases whether he is of sufficient intellect to comprehend the course of the proceedings so as to make a proper defence, to challenge a juror to whom he might wish to object, and to understand the details of the evidence - See Ryan and Magee - The Irish Criminal Process at page 269. Even putting the present case within the second part of the above statement, it does not appear that this case fits. What is alleged here is not that the applicant is unable to say whether he is guilty of not guilty, or that he could not decide to make a challenge to a particularly juror, or to understand the evidence. It is that, through the onset of Alzheimer's disease, he cannot sufficiently recollect events which are alleged to have happened some 28 years ago, and that he cannot for that reason properly defend himself against the charges which he denies. Its seems to me to be a case which fits exactly the circumstances envisaged in The State (0'Connell).v. Fawsitt (1986) I.R. 362 to which Mr. Justice Hardiman referred in his judgment in the earlier proceedings in this case in the following terms:
"I would also emphatically reiterate that, if there is a real risk of an unfair trial, it is the role of the High Court and this court to prevent it by prohibition and injunction."
In the words of Finlay C.J. in The State (O'Connell) -v- Fawsitt (1986) I.R. 362:
"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 a jury."
Even if I accept, as I must, that in the present case the delay which has occurred cannot be a matter for which the complainant has any culpable responsibility, that delay, for whatever reason, has given rise to the current situation where, by the time the charges come for hearing, the applicant is suffering from a clinically diagnosed ailment, namely Alzheimer's disease, and for which he equally can have no blame attached to him. In such a case, the procedure available under section 2 of the Criminal Lunatics Act 1800 is entirely inappropriate, and equally I do not consider that the applicant's constitutional rights to a fair hearing should be left to be safeguarded only by suitable directions to the trial judge, no matter how skilfully and sympathetically they may be given.
Having made these findings, there remains the question to be decided as to whether the medical condition of the applicant at the time of the present application, and in particular the onset of early Alzheimer's disease, affecting as it does, the ability of the applicant to recollect effectively and, marshal his thoughts and arguments, particularly in a court room setting, is something which renders improbable the chances that his trial on these charges would be a fair one. In view of the decision of the Supreme Court in the earlier case, it is not necessary for me to consider the cumulative effect of the factors alleged in that case to constitute prejudice, together with the factor now alleged to constitute prejudice, since none of the factors in the earlier case have been found by the Supreme Court to be sufficient to justify any prohibition against the further prosecution of the applicant on these charges. I must confine myself to deciding whether in all the circumstances there is a real and substantial risk of prejudice to the applicant's chances of a fair trial. That prejudice cannot be assumed to exist simply because the applicant has been diagnosed as suffering from early Alzheimer's disease. I must be satisfied that the risk of prejudice is real and substantial. Even if I am so satisfied, I must also balance that likelihood of prejudice with the right of the complainant, and indeed the public at large, to have accused persons brought to trial.
The evidence alleged to constitute prejudice
The applicant's solicitor Liam Guidera, in his grounding affidavit sworn in this application on the 23rd April 2001 sets out in paragraphs 1-3 the facts and events leading up to the Supreme Court's earlier decision in proceedings brought by this applicant, and which already have been referred to. The remainder of his affidavit commencing at paragraph 4 avers to facts and circumstances which put the applicant at a grave risk that any trial of the applicant on the offences with which he is charged would be an unfair trial. He avers that at the time of the swearing of the affidavits which grounded the earlier application, and during the course of those proceedings, the applicant's medical and legal advisors were not aware of any other medical or physical condition affecting the applicant. He says that subsequent to the Supreme Court hearing on that occasion, a date for the trial in the Circuit Criminal Court was fixed for the 20th November 2000, and that further written instructions were obtained from the applicant and members of his family in dealing with the relationship between the applicant's family and that of the complainant, the physical state of the premises in which the offences are alleged to have been committed, and in particular the garage and the use of same by local children. He goes on to say that on the 2nd November 2000 the applicant was present with members of his family at a consultation with Mr. Guidera, and senior and junior counsel. It appears from Mr. Guidera's affidavit that during the course of that consultation the applicant appeared to be confused in his recollection of many details and appeared to be unable to marshal facts to support and explain what recollections he had. Mr. Guidera states that where the applicant was able to answer questions he was unable to give any cogent reason to explain or justify the answer.
Having regard to the apparent difficulties that the applicant was experiencing, Mr. Guidera, junior and senior counsel all decided to terminate that consultation in order to allow the applicant to clarify his recollections and prepare in advance for a further consultation. Mr.Guidera deposes that on the 16th November 2000 a further consultation was held which was attended by him together with junior and senior counsel. He states that at that consultation the applicant appeared confused to an even greater extent. He apparently had difficulty in focusing on questions and was unable to give any coherent explanation for such answers as he gave. In particular he was unable to answer some straightforward questions notwithstanding that the questions were reformulated in the simplest of ways. Mr. Guidera states that, having consulted with junior and senior counsel, they were all very concerned that there might be some medical cause for the applicant's difficulties, and Mr. Guidera thereupon arranged for the applicant to be seen on an urgent basis by his general practitioner, Dr. Grennan. On the 20th November 2000 an application was made to the Circuit Court judge for an adjournment of the trial pending the outcome of further medical investigations. He states that the application was based on the observations of the applicant's legal advisors together with a short report of Dr. Grennan and he exhibits that report.
The report of Dr. Grennan commences by stating that he "examined John last week on the 16th December". I am assuming the reference to the 16lh December is a mistake and that it should read 16th November, given that the report appears to be dated 20' November 2000. In any event, Dr Grennan states that the applicant has been suffering from an agitated depression since his wife died about seven years previously. He states that the applicant has suffered an almost unbearable distress on top of his bereavement ever since he found out that he has been accused of interfering sexually with a young girl who lived next floor. He states that he called on the Thursday of the previous week to the applicant's house with the intention of assessing his mental state. The applicant was visibly anxious at the time but in spite of this Dr. Grennan states that he was able to carry out what he calls an adapted Folstein Mini Mental State Examination which consists of 30 different questions which test a person's orientation, registration, attention and calculation, recall, language, and manual skills. The applicant's scoring on this test was 29 out of 30. He states that this is a good score and would indicate that the applicant is unlikely to have any intellectual dysfunction. His stated reason for this is that he noticed that the applicant's expression at times would go blank if he was faced with a direct question which required recall from his long term memory. He stated that it would appear that the applicant can still produce an answer to a question relating to the past but cannot back up his answer with any plausible explanation as to how he arrived at that answer. Dr. Grennan stated that there could be at least two explanations for this. The first obvious one being that his anxiety state is making it difficult for him to focus on his thoughts. The second explanation could be that he may well have early onset dementia which is not as yet detectable by the test mentioned above. Dr. Grennan states that it is because of this second reason that he had written to Dr. Joyce Pickett who, he states, he has always found to be very reliable whenever there is a question of dementia. He then states his opinion that "in the meantime I believe that if John were to be cross-examined on events relating to his past he would be in grave danger of not having a fair trial".
At paragraph 7 of his affidavit, Mr. Guidera states that on the 23rd November 2000 the applicant was assessed by Dr. Joyce Pickett in his home and sent for further tests including a CT scan. He begs to refer to the affidavit of Dr. Pickett together with the reports exhibited therein. He says that, as appears from the said report of Dr. Pickett, the applicant has been diagnosed as suffering from early Alzheimer's disease and that Dr. Pickett states that the applicant suffers from a degree of cognitive impairment which would make it more difficult to verbalise his thoughts and present concise evidence especially in the stress of a courtroom. I shall refer in more detail to the report of Dr. Pickett when reviewing her affidavit. At paragraph 8 of his grounding affidavit, Mr. Guidera states that on receipt of these reports from Dr. Grennan and Dr. Pickett he wrote to the respondent requesting him to review his decision to prosecute this matter and he refers to some correspondence that passed between his firm and the Chief State Solicitor's office which is exhibited. He refers to the fact that at the request of the respondent, the applicant attended for an examination by Dr. Paul McCarthy, Consultant Psychiatrist and that he was subsequently furnished with a copy of that report which he also exhibits. He refers also to the fact that the respondent has informed him that it is his intention to proceed with the prosecution notwithstanding the matters referred to in his affidavit. Mr. Guidera expresses his belief that if the applicant were to stand trial there is a very grave risk that the trial would be unfair. He says that the applicant has been diagnosed with early Alzheimer's disease and a degree of cognitive impairment. He states that the applicant is therefore prejudiced in his ability to give evidence in his own defence and that the initial concerns of the applicant's legal advisors as to the ability of the applicant to defend himself against the charges, and their concern that there maybe a medical cause for same, appear to be borne out by subsequent medical examination and diagnosis. He refers to the fact that it appears from the medical evidence before the court that similar difficulties have been noted by all the medical experts. At paragraph 11 he states that the existence of early Alzheimer's disease is a fact which was not apparent to the applicant's medical or legal advisers at the time when the applicant's previous application was argued, and that he believes and is advised that the issue as to whether the applicant's trial should proceed in the light of his medical condition is not one which has been considered and determined as part of the previous proceedings between the parties and he prays for the relief sought.
The affidavit of Joyce Pickett sworn on the 27th April 2001 states that she is a consultant psychiatrist at St. Ita's Hospital, Portrane, Co. Dublin specialising in geriatric psychiatry. She refers to two reports dateĢ(respectively the 27th November 2000 and the 15th December 2000 which she exhibits. She states that on the 23rd November 2000 she assessed the applicant and interviewed members of his family in his home and subsequently referred him for blood tests and a CT scan. She says that on the 23rd November 2000 the applicant initially had difficulty in describing things and got details and dates wrong and further later contradicted himself. However, she states that as he relaxed a bit he was able to give more precise details of his previous history. On formal testing of his memory he was correctly orientated in time and place and his recall was good. However, the Mini-Mental State Examination used is not very sensitive for picking up early dementia. She states that in view of the fact that the applicant's son and daughter had both noticed short-term memory deterioration, she ordered a CT scan and a blood screen. The CT scan showed generalised atrophic changes, i.e. brain shrinkage, which would indicate early Alzheimer's disease. Low vitamin B12 levels shown could contribute to memory loss, she states. She says that in view of these findings, she is of the opinion that the applicant has early Alzheimer's disease and a degree of cognitive impairment which would make it difficult to verbalise his thoughts and present precise evidence especially in the stress of a courtroom. She expresses the view that having regard to the history outlined by his family, it is likely that the onset of the disease commenced "in the last two or three years". In paragraph 6 she states that since she wrote the reports exhibited, she has spoken to the applicant's legal advisors who outlined to her the difficulties they had experienced with the applicant in consultations, namely, a difficulty in focussing on questions, an inability to marshal facts or to articulate an answer and an appearance of confusion. She expresses the view that these observations by the applicant's legal advisors are consistent with the observation made during her assessment and with the diagnosis made. At paragraph 7 she states that among the symptoms of Alzheimer's disease are a deterioration in memory and a difficulty in marshalling thoughts. She states that while short-term memory loss is generally affected first, long-term memory may also be affected and that a person's ability to formulate a logical pattern of thought or to articulate it are affected. She states that similarly their ability to marshal or correlate facts or to give cogent answers is affected. In the applicant's particular case, she states that he seems to lose track of his thoughts when he tries to explain himself. The difficulties experienced by persons with Alzheimer's disease, she states, are exacerbated by anxiety. She states that people who suffer from Alzheimer's disease are easily agitated and that agitation or anxiety further impairs their ability to recollect and to articulate themselves. She states in paragraph 8 that she understands that the applicant would have considerable difficulty in verbalising his thoughts in the stress of a courtroom. She states that she is of the opinion that the applicant will experience this difficulty even when being questioned by his own barrister, and that this difficulty will be even greater when cross-examined. She also expresses the view that this difficulty will remain even if he were to be questioned in a sympathetic manner. She concludes by expressing her view that the applicant's ability to recollect and articulate his thoughts are "significantly impaired". She refers to the fact that he initially exhibited confusion and difficulties in recollecting details and dates and that in a courtroom it is unlikely that he will be able to give cogent and precise evidence or to articulate reasons for answers once questioned. In her affidavit, Dr. Pickett exhibited her report dated the 27th November 2000. The first part of that report sets out general background matters which do not need to be referred to specifically. However the latter half of the report adds some detail to what Dr. Pickett has deposed to in her affidavit and it is important evidence in getting an overall picture of the applicant's mental and physical state at that time. Dr. Pickett says that she spoke to the applicant's daughter who states that his memory appears good on a day-to-day basis, but she has noticed that he is forgetting such things as when he bought various items, and also is unclear about family relationships about which he would have been very exact in the past. She also feels that he has become bitter and suspicious with minor paranoia towards people, including herself. His daughter felt that the applicant froze at the briefing with the solicitor, and that he was talking in a roundabout way and contradicting himself. His daughter recalls an episode around Christmas 1998 when he was in bed and thought that the remote control had gone on fire and panicked and put it in the sink. She also states that around that time the applicant had also thought that Pat Kenny was in the room with him. She found that for a couple of weeks after that the applicant was confused. Apparently the applicant subsequently got a new television set but had great difficulty in learning how to use the new remote control. His daughter also stated to Dr. Pickett that he was neglecting his appearance for quite some time but that this had improved and she stated that generally she feels that when the applicant is under pressure he is unable to get his thoughts together. In her report Dr. Pickett goes on to state that the applicant was pleasant and cooperative throughout the interview and that his speech was normal. His mood appeared normorythmic. She states that at the initial part of the interview the applicant had some difficulty in describing things and in particular tended to get details and dates wrong and that subsequently there were some contradictions in what he had told her earlier. She states that on formal testing of his memory he was correctly orientated in time and space, that his recall was good (2 out of 3) and overall he scored 28 out of 30 on the Mini-Mental State Examination. He was able to draw a clock face and time correctly. In a post-script to that report, which pre-dates the blood test and CT scan, she states that she had also spoken to the applicant's son who stated that there had been a change in his father in the last year or two in that he does not trust people, is picking up things wrong and that this has led to arguments with himself, his sister and neighbours. His son had apparently noticed that his short-term memory was poor and that after he went to visit his father one day, he called back again several days later and his father had no recollection of that particular visit. His son also said that he had begun to repeat himself, had become more stubborn and feels that people are picking on him and going against him. He states that this is a change in his behaviour as he was a man who would always have been considered very fair. He had also noticed that his father had lost interest in socialising and in playing the accordion.
The second report of Dr. Pickett dated the 15th December 2000 refers to her first report and states that in view of her findings as expressed in that report and as a result of her conversations with the applicant's son and daughter to which reference has already been made, she ordered a CT scan and a blood screen. This later report states that "this CT scan indicated generalised atrophic changes i.e. brain shrinkage, which would indicate early Alzheimer's disease. The blood tests were essentially normal, but did show a low vitamin B12 level which could contribute to memory loss. In view of these observations and findings it would appear that (the applicant) has a degree of cognitive impairment which would make it difficult for him to verbalise his thoughts and present concise evidence especially in the stress of a courtroom".
As already mentioned, the respondent also carried out an examination of the applicant by Mr. Paul McCarthy, Consultant Psychiatrist. His report is dated 21st February 2001 and he states therein that the applicant, accompanied by his daughter, came to see him by appointment at St. James's Hospital on the 20th February 2001, that he spent about an hour interviewing the applicant and some time subsequently interviewing his daughter separately. He states that the applicant was well orientated for time and place, that he knew the time, date, location and talked easily about "current happenings in national life". He also states though obviously nervous of the interview proceedings initially, the applicant relaxed and talked with Dr. McCarthy about his early life in Kerry, some of his experiences in the Gardai, his wife and his interest in the plays of John B. Keane. Dr. McCarthy states "he reflected well on the nuances of the Keane plays". Dr. McCarthy refers to the fact that the applicant talked of the great distress which the present allegations had caused him but says that he was able to discuss them and also "the present legal scenario with clear understanding". The applicant admitted that, when stressed or under pressure for rapid answers or decision making, he can get "momentarily confused", but that this does not pose a problem ordinarily in his life. The applicant apparently acknowledged difficulty in simple matters such as "where did I leave my spectacles" and having had to train himself in routine procedures to overcome such inconveniences, but that he considered that this was relatively normal for a man of 70 years of age and that it had not altered greatly in the past few years. Dr. McCarthy says that the applicant's daughter "quite independently" reinforced the impression he had gained of a relatively competent and resourceful 70 year old man who would indeed have some confusion when under stress. She spoke of the frequency with which he forgets conversations that he has had with people over previous days, forgets to pass on messages, and does not remember her visits to him. Dr. McCarthy states that prior to the interview he had read the report of Dr. Pickett and had noted specially the atrophic brain deterioration that had been shown on the CT scan. Dr. McCarthy states thereafter "I would have little doubt but that, although (the applicant) can function quite satisfactorily in his relaxed home situation, he could indeed get into difficulties in the stress of the courtroom scene, and certainly become confused under cross-examination. Dr. McCarthy states that although the applicant can reason quite well during conversation, "the evidence would seem to be increasing that, not only is his capacity for recent memory declining significantly, but that he can become distressed and confused when under pressure. Dr. McCarthy states that the applicant's chronic anxiety state has certainly been "unhelpful in his coping with his early dementia", but that whatever the understanding, he would have little doubt but that his condition "would place him in an unfair position in a courtroom scene".
That is the extent of the evidence adduced in relation to the applicant's current state of mental and physical health. It is clear from the report of Dr. McCarthy that he is not in disagreement with the reports of Dr. Grennan and Dr. Pickett. All medical experts seem to agree that the applicant is suffering from a degree of cognitive impairment as a result of the onset of early Alzheimer's disease to such an extent as to be incapable of having a fair trial. However this court cannot simply accept those expressions of opinion from experts, no matter how professional and reputable they may be. The court cannot allow the opinion of an expert to substitute the court's own opinion, which must of course be informed by the medical evidence adduced. But the court must make up its own mind having regard to the medical evidence.
Conclusion
Having considered carefully the medical evidence contained in the affidavit of Dr. Pickett, her reports, the report of Dr. McCarthy and the evidence of the applicant's solicitor, Mr. Guidera, I am left with the impression of the applicant as an elderly man who is deteriorating mentally in recent years, and in a way that is manifestly different from the difficulties and ill-health which he described in his earlier application. It is worth noting, for example, that in the affidavit of Dr. Grennan sworn the 17th February 1998 in the earlier application, he outlined the health problems affecting the applicant at that time, and in which he concluded at paragraph 6
"It is my view that physically he would find it difficult to cope with the inevitable pressure and stress this would cause" (facing a trial before a judge and jury) (emphasis added).
The only other evidence relied upon in that application was an affidavit by the applicant himself sworn on the 13th February 1998 in which he outlined with some brevity the circumstances which he submitted entitled him to the relief he was seeking. Nowhere in these affidavits was there any suggestion made that he was incapable of properly instructing his lawyers or properly defending himself, other than what he stated at paragraph 10 of that affidavit that
"Because of the general nature of the allegations and the lack of detail in relation to the times of the alleged commission of these offences I am not in a position to instruct my solicitor and counsel as to whether I might have an alibi witness or as to any other factor which might affect the credibility of the complainant or this deponent."
It is worth noting that in this earlier application the applicant was in a position to swear his own affidavit, whereas in the present application he does not do so.
When I read the affidavit of Liam Guidera, in the present application, I am left with a clear impression that the applicant's lawyers felt in the very difficult position of having a client at a consultation, facing serious charges, who was in no position to adequately conduct himself at the consultation in such a manner that he could defend himself and instruct his legal team. This is quite clear from Mr. Guidera's affidavit.
Mr. Guidera is a very experienced solicitor, and I have no doubt also that senior and junior counsel are equally, if not more experienced in these matters. During the course of their careers they will undoubtedly have encountered clients from whom, for a variety of reasons, they will have found it frustratingly difficult to obtain coherent and satisfactory instructions, but nevertheless were able to do so to an extent that enabled them to fulfil their professional duties and responsibilities to those clients. Here we are talking about a significantly different degree of difficulty, amounting to impossibility. As Mr. Guidera deposes at paragraph 4 of his affidavit, it was considered advisable to terminate the consultation to enable the applicant to clarify his recollections and prepare for a further consultation. However, that further consultation which was held two weeks later, was even less satisfactory, the applicant appearing more confused. This led the applicant's legal team to suppose that there may be some medical reason for the applicant's difficulties. This is not a case where the applicant, or indeed his family, have sought to seek out medical advice themselves on their own initiative, which they felt might enable the applicant to avoid his trial. That may very well have been the background to the first application, I do not know. But 1 have no doubt, and nor is it submitted to the contrary by the respondent, that it was solely the result of the applicant's legal team's concerns, serious concerns, that they took it upon themselves to refer the applicant for medical assessment. In this, in my opinion, they acted in a totally professional and responsible manner.
As we now know from Dr. Pickett, the difficulties encountered by the applicant, and his legal team, are consistent with, and I must conclude, result from what has been described as the onset of early Alzheimer's disease. This diagnosis has been made following a CT scan which disclosed atrophic changes to the brain (i.e. brain shrinkage), and following certain blood tests. The uncontroverted evidence is that the applicant is now suffering from this unfortunate disease which no doubt will progressively worsen. Dr. Pickett has deposed that the applicant now suffers from a degree of cognitive impairment. This would give rise to the actual difficulties encountered by the applicant's legal team.
It is also notable that the applicant's daughter stated to Dr. Pickett that she had noticed changes in her father. She says that there are personality changes, some incidents in which her father appears to be suffering from delusions, memory loss, a neglect for his appearance and an inability when under pressure to "get his thoughts together". Dr. Pickett also states that she spoke to the applicant's son who said that there had been a change in his father "in the last year or two". His father apparently has lost trust in people, and this leads to arguments with his family. He noticed his memory loss, and that he has become stubborn and argumentative, whereas heretofore he would always have been regarded as a fair man. He also noticed that his father no longer played his accordion.
I mention these last matters in order to justify my conclusion that it is not simply in relation to instructing his lawyers that the applicant is experiencing difficulty as a result of the disease with which he is now afflicted. The effects of his mental deterioration are manifesting themselves in his life generally. If this were not so, it might diminish the court's view of the actual effect of this unfortunate disease on the applicant's ability to have a fair trial. The report from Dr. McCarthy, whose examination was carried out on behalf of the respondent, contains nothing that would dilute the significance of the evidence adduced on the applicant's behalf.
I have arrived at my conclusion, supported by the similar conclusion of Dr. Pickett and Dr. McCarthy, that the applicant is suffering from a medical condition, Alzheimer's disease, which is clinically proven and which is of such a nature and degree as to prevent the applicant from properly and adequately instructing his legal team for his defence to serious charges, and to such a degree that there is now indeed a real and substantial risk that, were he to face trial on these charges, he could not be said to have a fair trial. I consider that this consideration outweighs the counterbalancing consideration of the complainant's and society's right to have persons accused of offences brought to trial.
In these circumstances I order that the respondent be restrained from proceeding further with the prosecution of the charges set out in the Statement of Charges dated 12th October 1997 which is Exhibit A in the affidavit of the applicant sworn in the earlier proceedings on the 13th February 1998.