The High Court has refused an application by a retired surgeon to stop a prosecution over alleged indecent assaults, finding that the evidence did not establish a real risk of an unfair trial that could not be addressed by the trial judge.
The applicant, whose identity is anonymised in the judgment, faces charges relating to complaints by former patients. The alleged offences are said to have occurred between 1964 and 1991, in the hospital where he worked or in his private consulting rooms. He denies the allegations. He was acquitted in 2003 of earlier charges relating to six complainants.
The surgeon argued that the delay, loss of potential witnesses, his age and health, and extensive adverse publicity together made a fair trial impossible. He also challenged the proposed addition of charges relating to six further complainants.
Justice Iseult O’Malley said the age of some allegations and the loss of witnesses were serious issues, but the applicant had not shown identifiable prejudice sufficient to stop the case before trial. It was not enough to say an unavailable witness might have helped; there needed to be some indication of why. The judge said a trial judge could warn the jury about the effects of time and stop the trial if unfairness became apparent as evidence emerged.
The court also rejected the publicity argument. It noted extensive coverage, including a 2009 television programme, but said no charges were pending when that programme aired and no publicity had arisen after the applicant was charged in July 2012. The judge considered that the lapse of time and directions to the jury could safeguard a fair trial. Neither publicity nor delay, alone or together, justified stopping the prosecution.
On the proposed additional counts, the court agreed with the applicant’s reading of the legislation: charges not founded on documents served under the relevant statutory provisions require the accused’s consent. But the indictment before the court was only a draft. The judge said the issue should first be raised in the Circuit Court, and that it did not justify a permanent injunction or an order restraining prosecution on that draft indictment.
The court refused the relief sought. It did not determine the applicant’s guilt or decide the final status of the proposed additional counts.