The High Court has refused a doctor’s application to prohibit a retrial on 11 criminal counts, finding that the time taken to investigate and prosecute the case was not excessive and that no sufficient prejudice had been shown.
The judicial review application concerned a decision by the Director of Public Prosecutions to retry the counts on which a jury had been unable to agree. The applicant had been acquitted of other charges at his first trial. The judgment does not decide whether the allegations are true or whether the applicant is guilty of the unresolved charges.
The allegations concern treatment called photodynamic therapy, which the applicant offered at his clinic. It was alleged that between September 2001 and October 2002 he obtained money by falsely representing to patients that the treatment would cure their cancer.
The applicant argued that the prosecution had been delayed and that he was disadvantaged by the death of former patient Mark Hadden before the first trial. He said Hadden may have influenced other patients’ expectations about the treatment, and that his evidence could have helped challenge prosecution witnesses. The significance of Hadden’s contacts with other patients emerged during cross-examination at trial, the applicant submitted.
The DPP argued that the investigation involved substantial evidence and complex issues, and that the applicant had not established a causal link between any delay and a real risk of an unfair trial. The DPP also relied on the availability of Hadden’s wife and the transcript of his evidence before the Medical Council’s Fitness to Practise Committee.
Mr Justice Hedigan found that the Garda investigation and the DPP’s consideration of the case had been progressed with due expedition, taking account of the investigation’s scope. He ruled that no delay capable of giving rise to an unfair trial had occurred. On that basis, it was unnecessary to decide the prejudice issue, though the judge went on to address it.
The judge said the applicant had not shown an unambiguous factual link between delay and prejudice. He noted that Hadden’s wife could give an account of a conversation, that prosecution witnesses acknowledged speaking with Hadden, and that trial transcripts would be available for any retrial. The judge also considered that Hadden’s proposed evidence did not address the central question of what the applicant allegedly said to his patients.
The court concluded that the applicant was not entitled to prohibition. The retrial was not barred by this judicial review decision.