The High Court has refused a doctor’s application to stop his prosecution on four counts of indecent and sexual assault, finding he had not established a real or serious risk that he could not receive a fair trial because of delay.
Mr Justice Hanna delivered the judgment on 1 March 2013 in judicial review proceedings brought by K.M. against the Director of Public Prosecutions. The application sought an order prohibiting the prosecution. The court refused that relief; it did not determine the criminal charges.
The charges concern three complainants and alleged offences between 1989 and 1996. K.M. argued that the time taken from an initial complaint to the Health Service Executive in 2006, through Garda investigations and the decision to charge him in March 2012, had prejudiced his defence. He relied on missing medical records, the death or unavailability of possible witnesses, faded memories and the stress of investigations.
The judgment records that the first formal Garda complaint was made in October 2010, with two further complaints in April 2011. Gardaí interviewed witnesses, sought records and investigated the complaints together. Detective Sergeant Michael Corbett’s affidavit described the investigation as time-consuming, including searches for records and consideration of the circumstances of one complainant, described in the judgment as a vulnerable adult. The DPP issued directions in March 2012, and K.M. was charged at Mallow District Court on 27 March 2012.
On the claimed trial prejudice, the judge found the evidence did not establish that missing documents, a deceased witness or the passage of time created a real or serious risk of an unfair trial. The judgment noted that a counsellor who had given a Garda statement remained available as a witness, and that there was no evidence the deceased religious sister had been told of the alleged abuse or could have testified about it. The court said it had not been shown that missing medical records would make the trial unfair. It also pointed to the possibility of other evidence about the surgery’s opening hours and the trial judge’s ability to give appropriate warnings and directions.
The court was not satisfied that blameworthy prosecutorial delay had been established. It accepted the respondent’s explanation of the investigation and said the period after formal complaints until the Garda investigation concluded was not enough to justify prohibiting the trial. As it found no basis in delay for stopping the prosecution, it said it was unnecessary to decide the stress-and-anxiety issue. It nevertheless said the applicant had not established distress beyond what a person presumed innocent might unavoidably experience facing serious charges, and observed that much of the distress arose from earlier HSE and Medical Council investigations.
The court concluded that those investigations were necessary and proper in light of the allegations and the bodies’ statutory responsibilities. It refused the application for prohibition.