Supreme Court dismisses appeal against DPP prosecution citing no constitutional violation from delay or abuse of process.

THE SUPREME COURT

Keane C.J.

Murray J.

McGuinness J.

141/03

BETWEEN

JAMES M. BARRY

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

AND (by order of the court dated 17th November 1997) THE DISTRICT JUDGE FOR THE TIME BEING ASSIGNED TO DEAL WITH

THE PROCEEDINGS ENTITLED “THE DIRECTOR OF PUBLIC PROSECUTIONS (PROSECUTOR) – AND – DR. JAMES BARRY

(ACCUSED)” IN THE DISTRICT COURT CORK

RESPONDENTS

AND

THE ATTORNEY GENERAL

NOTICE PARTY

JUDGMENT delivered the 17th day of December 2003, by Keane C.J.

Introduction

These are proceedings by way of judicial review in which the applicant seeks an order prohibiting the first named respondent

(hereafter “the D.P.P.”) from taking any further steps in the prosecution referred to in the title.

The applicant having been given leave to apply for such relief and a statement of opposition having been filed, the substantive action

was heard by O’Neill J. In a reserved judgment, he held that the applicant was not entitled to the relief claimed. From that judgment,

the applicant now appeals to this court.

The proceedings arise out of a number of charges of indecent assault against females brought against the applicant who is a

registered medical practitioner and, at the relevant times, was in general practice in Cork city. Forty two females are named in the

charges as being the victims of the alleged assaults.

Of the four grounds on which leave was originally granted, two were relied on in the appeal to this court. They were:-

“(1)There has been gross and inexcusable delay resulting in legal and moral prejudice to the applicant in initiating the said

prosecutions amounting to an abuse of the process of the courts and a contravention of Article 38.1, Article 40.1 and Article

40.3 of the Constitution and Article 5.1 and Article 6 of the European Convention on Human Rights and Fundamental Freedoms.

(2) “There has been a pattern of abuse of process and fundamental unfairness amounting to oppression and a denial of the

right to constitutional justice which is in violation of Article 38.1, Article 40.1 and Article 40.3 of the Constitution and of Article

5.1 and Article 6 of the European Convention on Human Rights.”

The factual background

The assaults are alleged to have been committed over a period of years extending from 1966 to 1995. The applicant was charged

with these offences in the District Court on the 30th November, 1997, but it would appear that the first complaint to the Gardaí was

made in May 1995 by a female to the effect that she had been indecently assaulted by the applicant and that he had made video

recordings of her in the nude or semi-naked on a number of occasions. That resulted in the obtaining of a warrant on the 4th June,

1995 under s. 25 of the Video Recordings Act, 1989 authorising a search of the applicant’s premises, which was subsequently carried

out. The only criminal proceedings, however, which resulted from that search related to the alleged obtaining of certain tablets by

false pretences from a pharmacist and the unlawful possession of a number of rounds of blank ammunition. Those prosecutions were

not proceeded with and the summonses were struck out in the District Court. The applicant was also served with notice of an

application under the Police Property Act, 1897 as to the disposal of the blank ammunition, but those proceedings also appear to have

been abandoned.

The order of the High Court giving leave to institute these proceedings was granted on the 17th November, 1997. However, the

proceedings were not ultimately determined in the High Court until the trial judge gave judgment on the 14th February, 2003, the

matter of costs being dealt with on the 13th March, 2003.

It is clear that a significant part of this delay was the result of a protracted discovery process. The D.P.P. was ordered to make

discovery within four weeks of the documents in his possession or power relating to the matters in question in the action. The

affidavit of discovery was sworn by Superintendent Thomas J. Waldron on the 8th July, 1998. The applicant then sought further and

better discovery and in response an affidavit was sworn on the 8th December, 1998 by Mr. John Rohan, an assistant solicitor in the

officer of the Chief State Solicitor. The applicant then brought a motion on the 9th December, 1998 requiring the D.P.P. to produce

for inspection documents in respect of which the D.P.P. had claimed privilege. He also sought an order directing the D.P.P. to make

further and better discovery of material documents which he said were in the possession of the D.P.P. but had not been discovered.

An order was then made by Geoghegan J. on the 28th January, 1999 requiring the swearing of an affidavit by the applicant’s solicitor

within two weeks specifying the documents in respect of which the applicant was disputing the claim for privilege and the reasons.

Between then and the 3rd December, 1999, a number of additional affidavits were sworn and filed on behalf of the applicant and of

the D.P.P. and there were further applications to the court. It is unnecessary to set out these in any detail: it is sufficient to say

that, while there was considerable delay on the part of the D.P.P. in making the discovery required of him, the applicant was also in

default in failing to comply with the order by Geoghegan J. of the 28th January, 1999. Ultimately, on 3rd December, 1999, Geoghegan

J. made an order requiring the D.P.P. to produce for inspection the statements of the complainants to whom the charges related, but

declined to order the production of reports of medical experts obtained by the D.P.P. for the purpose of the criminal prosecution of

the applicant.

The trial was then fixed for hearing of the 22nd February, 2000. However, at this stage, the D.P.P. applied for and was granted leave

to file additional affidavits. Thirty three such affidavits were filed, of which twenty one were affidavits from complainants verifying

statements of complaints made by them to the Gardaí. The hearing in respect of the two grounds on which leave had been granted

which are the subject of this appeal was adjourned and, at this stage, the applicant sought to re-open the question of the inspection

of documents. That application for further and better discovery was heard by the trial judge and rejected by him on the 2nd April,

2001.

An additional ground on which leave had also been granted, i.e. that the offences of indecent assault contrary to common law and

sexual assault contrary to common law had been abolished was the subject of High Court judgments in other proceedings. In each of

these cases – Grealis –v- Director of Public Prosecutions, Corbett –v- Director of Public Prosecutions [2001] 3 IR 144 and O’C. –v-

Governor of Curragh Prison [2002] 1 IR 66 – the judgments were the subject of an appeal to this court, in which judgments were

delivered on the 31st May, 2001 and the 13th July, 2001. The further hearing of the present proceedings was adjourned pending the

determination of the appeal to this court in those proceedings.

The hearing of these proceedings began in the High Court on the 11th January, 2002. The hearing was completed on the 25th

January, 2002 and the trial judge reserved judgment. As already noted, the judgment was not delivered until 14th February of this

year.

It has been necessary to set out in some detail the history of the matter in the High Court, since, in relation to the first ground, the

applicant relies on three separate periods of delay, i.e. the delay from the alleged assaults to the making of complaints, the delay

from the making of complaints to the issuing of criminal proceedings and the delay from the institution of the judicial review

proceedings to their determination.

It is now necessary to consider in more detail the circumstances in which the prosecution which he has sought to restrain was

initiated against the applicant.

The search of the applicant’s house, clinic and consulting rooms on the 6th June, 1995 was the subject of media reports, although

the applicant was not at that stage named. However, as a result of subsequent civil proceedings instituted against him in the Circuit

Court, the name of the applicant became known to the public as being the doctor concerned. Thereafter, the Gardaí received

approximately six hundred complaints from women claiming to have been indecently or sexually assaulted.

Of the forty two complainants in respect of whom charges have been preferred, twenty one swore affidavits in the course of the trial.

These affidavits exhibited the statements which the complainants had made to the Gardaí. In each case, the complainant deposed

that everything she said in the affidavit was true and accurate to the best of her knowledge and belief. These affidavits were filed

during the course of the trial and not at the stage when the statement of opposition was delivered on behalf of the D.P.P. In the

case of the remaining twenty one complainants, the statements alleged to have been made by them to the Gardaí were exhibited in

an affidavit of Donal Murray sworn the 18th February, 2000.

In the forty two statements alleged to have been made by the complainants to the Gardaí, they give accounts of what transpired at

visits by them for the purpose of having a medical examination at the consulting rooms of the applicant. The complainants at the

relevant time ranged in age from eleven to twenty one. While the experiences recounted in the various statements differ, they include

accounts of being asked to remove either all their clothing or all of it except their underwear and of being subjected to touching of

their breasts and internal vaginal examinations. In addition, in a number of the alleged complaints, it is stated that the applicant

subjected them to an intrusive interrogation as to their experience in sexual matters. It is clear that the case for the prosecution, if it

proceeds, will be that these alleged activities on the part of the applicant went well beyond what could possibly be required if a

normal medical examination of the females concerned was being carried out, having regard to the particular medical condition which

necessitated the examination, and consequently constituted either an indecent assault or a sexual assault.

The earliest allegations are made in relation to events alleged to have occurred in 1965. The more recent relate to events which are

alleged to have occurred in 1994. In a number of the statements, although not in all of them, the complainants offer explanations as

to why they made no complaint at the time. While the explanations offered take different forms, there are aspects which are common

to most of them, i.e. their belief that the actions of the applicant were necessary because he was a doctor, their trust in him as a

doctor, their relative youth and inexperience at the time, their lack of knowledge as to what was normal and appropriate in medical

examinations and (in some cases) fear or at least nervousness and anxiety because of the reaction of the applicant to their hesitation

in doing what he was asking them to do.

Delay

On behalf of the applicant, Dr. White S.C. submitted that, in the first place, both the twenty one affidavits sworn by some of the

complainants and the statements exhibited in Donal Murray’s affidavit in respect of which no affidavits had been sworn by the

complainants concerned were inadmissible as being hearsay. In the case of those who had sworn affidavits, he submitted, their failure

to depose in the body of the affidavit to the facts set out in the statements should have resulted in the contents of the statements

being treated as inadmissible. A fortiori the statements exhibited in the affidavit of Donal Murray were also inadmissible, since in those

cases the deponents had not even sworn to the truth of the contents of the statements.

Dr. White submitted that, in these circumstances, there was no admissible evidence before the High Court which entitled the trial

judge to reach any conclusion other than that the trial of the applicant should be prohibited on the ground that there had been a

significant delay, extending from four years to forty years, in the making of complaints to the Gardaí by the alleged victims which had

resulted in a real and serious risk of an unfair trial in breach of the applicant’s constitutional right to a trial in due course of the law.

He submitted that, in a case of this nature, the recent decisions of the High Court and the Supreme Court had made it clear that the

trial should be halted unless there was evidence before the High Court that the delay was due to the conduct of the applicant, citing

B. –v- D.P.P. [1997] 3 IR 140 and P.O’C. –v- D.P.P. [2000] 3 IR 87.

Dr. White further submitted that, even if any of the statements were admissible, they did not meet the requirements which had been

laid down in the High Court and this court as to the evidence which the prosecution were obliged to adduce where it was claimed on

their behalf that the delay was, in the particular circumstances of the case, excusable. He submitted that it had become the standard

practice in the High Court in cases of this nature to adduce evidence which was capable of satisfying the court that the delay was

excusable. He said that in no case had the complainant sworn an affidavit deposing as to the reasons why she had failed to make a

complaint until many years after the alleged events. Moreover, there was no evidence from any psychologist or equivalent expert

which might have satisfied the court that the delay was explicable and excusable, although such evidence had been regularly

adduced in cases of this nature in the High Court in recent years. He cited in this context the decision of the High Court and this

court in S. –v- The Director of Public Prosecutions and Judge Michael Connellan, [unreported, judgment delivered the 19th December,

2000].

Dr. White further submitted that, in any event, there was inordinate and inexcusable delay on the part of the D.P.P. in charging the

applicant extending from November 1995, when the statements were made, to 30th October, 1997. He submitted that each

statement could have been read and considered by an experienced official in the office of the D.P.P. within fifteen minutes. Following

that, there was no reason why the statements could not have been considered within a month, the necessary medical reports

obtained within a further two months and the charges drafted within a further month. This prosecutorial delay, he submitted, clearly

constituted an infringement of the applicant’s constitutional rights to an expeditious trial, citing the decision of this court in Hogan –v-

President of the Circuit Court [1994] 2 IR 513.

As to the delay in these proceedings, Dr. White submitted that the trial judge was in error in holding that the applicant had been in

default in relation to discovery, since he had in fact complied with the order of Geoghegan J. on the 28th January, 1999. Since it was

quite clear that the D.P.P., for his part, had been seriously in delay, the trial judge should have found that the applicant’s right to an

expeditious trial had accordingly been violated by the conduct of the D.P.P. Dr. White also submitted that the trial had been further

delayed by the conduct of the D.P.P. in adopting the posture that the statements of the alleged complainants were irrelevant, a

posture which he only belatedly abandoned after the commencement of the trial of the proceedings on the 22nd February, 2000. He

further submitted that the trial judge himself had further contributed to the delay by not giving judgment in the case until 14th

February, 2003 and that, in the light of the decision of the European Court of Human Rights in Doran –v- Ireland (judgment delivered

31st July, 2003) this court should hold that the applicant’s constitutional right to an expeditious trial had been violated and that the

trial should not now proceed.

In the written submissions lodged on behalf of the D.P.P., it was argued that the decisions of this court in B. –v- D.P.P. and P.O’C. –v-

D.P.P. were wrong in law and should not now be followed, since they proceeded on the erroneous premiss that the court could

restrain a trial from proceeding where there had been no prosecutorial delay but solely delay by the complainant. On the hearing of

the appeal, Mr. Feichin McDonagh S.C. on behalf of the D.P.P. accepted that a similar argument had been advanced on behalf of his

client in a recent case in this court in which judgment was reserved. In these circumstances, he reserved his client’s position in this

case, pending the delivery of the reserved judgment. However, on the assumption that the applicable law was as stated by this court

in B. –v- D.P.P. and P.’OC. –v- D.P.P., Mr. McDonagh made a number of submissions in response to those on behalf of the applicant.

As to the form of the affidavits filed on behalf of the D.P.P., Mr. McDonagh submitted that there was no reason why hearsay evidence

should not be adduced in judicial review proceedings of this nature. The issues in such cases are defined by the statement of grounds

on which leave is given and the statement of opposition. All that is required in either case is an affidavit verifying the matters of fact

relied upon by the parties. It is only where a dispute of fact arises that the court may, where it is asked to do so, order further

affidavits to be sworn. He cited in support the observations of Hardiman J. in P.O’C –v- D.P.P. and of O’Flaherty J. in E.O’R. –v- D.P.P.

(unreported, judgment delivered 18th March, 1997).

As to the submission that the D.P.P. should have adduced sworn evidence by the complainants deposing to the reasons for the delay

in making the complaints or evidence by a psychologist or some other expert dealing with the question as to whether such delay was

explicable, Mr. McDonagh submitted that there was no inflexible rule requiring evidence of that nature to be adduced in every case:

whether it was required depended entirely on the circumstances of the particular case. He submitted that, in the present case, unlike

other cases, the complainants were at the very least uncertain whether the alleged actions of the applicant were criminal in nature,

since they had been committed under the guise of carrying out a medical examination. The court was entitled to treat the

complainants’ inaction as understandable, given the relationship of doctor and patient which existed at the material time.

As to the prosecutorial delay, Mr. McDonagh submitted that the earliest date at which the Gardaí had an obligation to begin an

investigation was in the summer of 1995 when they started to receive complaints concerning the applicant. He submitted that the

High Court was entitled to accept the evidence on affidavit of Superintendent Thomas Waldron and the Acting State Solicitor for Cork

City, Edward J.P. Hanlon, that the investigation of over six hundred complaints alleging sexual and indecent assault against the

applicant had to be carried out with extreme sensitivity and care and that this inevitably required considerable time. The High Court

was also entitled to accept the evidence of these witnesses that frequent recourse had to be had to the D.P.P. for his guidance and

directions and that, in addition, it was necessary to seek expert medical evidence properly to assess the nature and significance of

the various allegations.

As to the delay in these proceedings, Mr. McDonagh submitted that while the proceedings were adjourned from time to time in the

High Court, many of the adjournments were with the consent of the applicant and, in any event, it would not have been open to the

learned trial judge to review the decision of another High Court judge to grant an adjournment, even in cases where it was opposed.

He cited in this context the decision of the High Court in D.P.P. –v- Judge Johnson & Madison [1988] ILRM P750. He further submitted

that, in any event, a significant part of the delay was due to the applicant’s failure to comply with the direction of the High Court on

the 28th January, 1999 and the 4th November, 1999 that he should specify which of the documents in respect of privilege was

claimed he was seeking to inspect. Nor could the applicant complain of the delay which was the result of appeals having been brought

in respect of three High Court decisions rejecting another of the grounds on which the applicant sought to rely, which appeals were

ultimately rejected by this court. As to the delay between the end of the hearing in the High Court and the giving of judgment, Mr.

McDonagh submitted that the decision in Doran –v- Ireland was of no relevance to the case being advanced by the applicant: it was

confined to the issue as to whether this state could be found to have been in default in not having procedures in existence to reduce

or eliminate such delays.

Mr. McDonagh further submitted that the applicant had in any event wholly failed to establish that there was any actual prejudice or

that prejudice should be presumed because of the delay. In the result, the trial judge was entitled to conclude that there was no real

or substantial risk of an unfair trial. The applicant had not given any evidence on affidavit that he would suffer any specific prejudice

as the result of the delay, such as the non-availability of witnesses or the non-availability of medical records in respect of the

individual complainants resulting from the lapse of time. Nor had he suggested on affidavit that he would have any difficulty in

recalling visits made to him by the complainants and the medical examinations conducted by him of them.

I shall consider first the objection as to the evidence furnished on behalf of the D.P.P. in response to that adduced on behalf of the

applicant. There is, in my view, no substance in the submission that the trial judge should have treated as inadmissible the twenty

one affidavits sworn by the complainants on the ground that the complainants had simply exhibited the statements already made by

them to the Gardaí and sworn that their contents were true and accurate. The affidavits in judicial review proceedings are not

required to do more than verify the facts set out in the statement grounding the application or the statement of opposition, as the

case may be. If the court is satisfied that any issue of fact arises which requires the hearing of oral evidence, he or she may so

order. That has rarely happened in cases such as the present and that is understandable, given the undesirability of conducting

detailed inquiries on oral evidence as to matters which may very well arise during the course of the trial of the relevant offences if it

is allowed to proceed. (See in this context the observations of Hardiman J. in P.O’C. –v- D.P.P. at p. 116.) Similarly, the court was

perfectly entitled, in my view, to admit in evidence for the purpose of the judicial review proceedings the statements made by the

complainants who did not swear affidavits but whose statements were exhibited in the affidavit of Donal Murray.

That brings me to the submissions advanced on behalf of the applicant in relation to the various periods of delay from the commission

of the alleged offences to the delivery of judgment in the present proceedings in the High Court.

For the purposes of this appeal, it is not necessary to consider in detail the many recent decisions in which the High Court and this

court have explained the principles of law applicable in cases where the defendants in criminal proceedings arising out of sexual

assaults alleged to have been committed on children or young persons have sought to restrain the further prosecution of the charges

on the ground that there is a real and substantial risk of an unfair trial resulting from the delay in instituting or prosecuting the

proceedings. The delay from the events alleged to have occurred and which were the subject of the complaints in this case was in

many instances such that, applying the principles laid down in B. –v- D.P.P. and subsequent cases, the applicant would be entitled to

an order restraining the continuance of the prosecution unless it was established as a matter of probability that the delay was

explicable and excusable in the particular circumstances of the case.

On the assumption that the accounts given by the complainants in their statements to the Gardaí are true, I have no doubt that their

failure to make any complaint to the Gardaí or their parents, until they were older and also became aware that their experience was

not unique, was perfectly understandable. I do not think that that conclusion is in any way affected by the absence, in the case of

some of the complainants, of any explanation as to why they did not complain at any earlier stage.

This was not a case of alleged sexual intimacy by an older person with a child simpliciter, where the child did not consent or where,

having regard to his or her age, no informed consent to the conduct in question could have been given. In such cases, once the child

has reached an age at which it is reasonable to assume that he or she is aware that the actions of the adult concerned were

wrongful, the court is naturally put on inquiry as to why no complaint was made at that stage. These, however, were cases in which

the conduct in question was allegedly carried out by the applicant under the guise of medical examinations. Since the complainants

ranged in age from eleven to twenty one at the relevant times, it was not surprising that, if the accounts they gave of the

applicant’s conduct were truthful, they would have been at the least uncertain as to whether what he was doing was wrongful, let

alone criminal. Their reluctance to complain, on that hypothesis, would have been the natural reaction of a young person being

purportedly examined for purely medical reasons by a person in the applicant’s position.

As already noted, in a number of the statements the complainants explained their inaction in those terms. The trial judge considered

that to distinguish between those statements in which the complainants offered such explanations and those in which they did not

was an artificial exercise and I am satisfied that he was correct in so holding. It is clear that, in the case of each of these

statements, it was a reasonable inference that the failure of the complainant to make a complaint at the relevant time was the result

of their trust in the applicant as a doctor, their age at the time and their lack of knowledge as to what was normal and appropriate in

medical examinations.

Thus this case is different from those in which, for one reason or another, there has been a delay in the making of a complaint

although the victim was aware, at least since becoming an adult, that an act that was patently criminal had been committed against

him or her. In this case, it was reasonable for the trial judge to conclude that the complaints were not made due to a lack of

awareness or uncertainty on the part of the complainants as to whether what had happened to them was wrongful or, in particular,

whether any criminal offence had been committed. The learned trial judge was entitled on the evidence before him to accept the

explanation that it was the media publicity associated with the civil proceedings against the Appellant in 1995 which alerted

complainants to the fact that what had allegedly happened to them may indeed have been criminal in nature, resulting in the making

of numerous complaints to the Gardaí at that time.

It is again necessary to emphasise in this and every similar case that that conclusion is reached on the assumption that these were

truthful complaints. Manifestly, making such an assumption for the purpose of this inquiry does not and cannot amount to a finding

that the applicant was guilty, as a matter of probability, of the conduct in question.

I am also satisfied that, in these circumstances, the trial judge was entitled to reach the conclusions he did, although there was not

before him evidence on affidavit by a psychologist or some equivalent expert to the effect that the inaction of the complainants was

explicable having regard to the relative ages of the complainants and the alleged perpetrator of the abuse and the relationship

between them at the relevant times. Whether the adduction of such evidence is a necessary precondition to a finding that the failure

to make a complaint at the relevant time was explicable and excusable must depend on the particular circumstances. As the

authorities demonstrate, it may undoubtedly play an important part in inquiries of this nature, where the alleged victims failed to make

any complaint in respect of patently criminal conduct even at a stage when they had become adults and might be presumed to be

fully aware of the wrongful nature of the offending conduct. It is true that in S. –v- D.P.P., which was also a case in which a medical

practitioner was alleged to have committed sexual assaults upon young patients, there were expert reports from psychologists dealing

with each of the complainants and offering an explanation for the delay. However, the fact that it was thought necessary, or at least

desirable, to adduce such evidence in that case is not a ground for concluding that it is essential in every such case. I have no doubt

that the trial judge was correct in the approach he adopted, i.e. of considering the admissible evidence, attaching such weight to it

as it deserved and drawing such inferences from the evidence as seemed to him necessary or reasonable.

The applicant in the affidavit which he swore in the High Court did not refer to any specific prejudice he would suffer in the conduct

of his defence as a result of the delay in making the complaints. Thus, there is no evidence that he will be handicapped by the

absence of medical records or the non-availability of any relevant witnesses. While he does understandably complain of the difficulties

he will encounter in defending the charges, by reason of his age and deteriorating health, it is clear that old age and ill-health are

not, of themselves, grounds which would justify the court in restraining the continuance of the prosecution. (See the decision of this

court in J.O’C. –v- D.P.P (unreported; judgments delivered 19th May 2000).

The second period of delay on which the applicant relies is the period which elapsed from the making of the first complaint in the

summer of 1995 to the charging of the applicant in October 1997. I am satisfied that, in the circumstances of the case, that delay

could not be regarded as so unreasonable as to amount to a violation of the applicant’s constitutional right to a speedy trial which

should outweigh the public interest in the prosecution of the alleged offender. This was a case in which the Gardaí had to investigate

over six hundred complaints and in which they took written statements from one hundred and forty six persons. In addition, expert

medical evidence had to be obtained with a view to ascertaining whether the conduct complained of was justified in medical terms. It

was clearly essential for all this material to be reviewed from time to time in the office of the D.P.P. I am satisfied that the High Court

judge was correct in concluding that the delay was not so excessive as to amount to a violation of the applicant’s constitutional right

to a fair trial which required the prohibition of the continuance of the trial.

The third period of delay on which the applicant relied was that from the institution of the judicial review proceedings to their

determination by the High Court. Some at least of that delay was solely the responsibility of the applicant or his legal advisors since it

resulted from their persistent refusal to comply with the directions they were given by Geoghegan J. to specify the particular

documents in respect of which the D.P.P. had claimed privilege and which they said they were entitled to inspect. Some of it was due

to the delay which necessarily elapsed after the serving of a notice of appeal in respect of the three High Court decisions relating to

the abolition of the offences of indecent assault and sexual assault. Some of it was the result of adjournments sought by the D.P.P.

during the protracted discovery process. Finally, there was the delay from the end of the hearing in the High Court to the delivery of

judgment by the High Court judge.

The only periods of delay in respect of which responsibility can be attributed to the D.P.P. was that in relation to the discovery

process. In relation to that period, I am satisfied that the High Court judge was correct in declining to assume that the adjournments

in question had been improperly granted, whether they were by consent or opposed. The considerable delay in delivering judgment

was not in any way the fault of either the applicant or the D.P.P. and it is a complete misunderstanding of the decision of the

European Court of Human Rights in Doran –v- Ireland to treat it as authority for the proposition that, in a case such as the present,

the right of the public, as represented by the D.P.P., to the trial of serious offences can be defeated by a delay for which the

prosecuting authorities bore no responsibility. The decision of the majority of the court in Doran –v- Ireland is authority for the

proposition that unreasonable delay in the determination of proceedings resulting from the procedures ordained in legislation or

otherwise by the member state may result in an award of damages payable by the state to the injured party but does not have the

effect of entitling a party in the domestic courts to relief which would otherwise not be available to him.

I am satisfied that the judgment of the High Court on this ground was correct.

Oppression

The second ground on which the applicant relied in the High Court and again in this court was that there had been what was

described as a pattern of abuse of process and fundamental unfairness which amounted to oppression and to denial of the applicant’s

right to constitutional justice. The matters said to constitute such a pattern were as follows:

(1) The introduction of the thirty four affidavits already referred to during the course of the trial which was described as leading

to a form of “trial by ambush”;

(2) The decision of the D.P.P. to prefer 237 charges in respect of alleged offences against forty three women at the same time,

resulting in what is described as an “avalanche” of charges putting the applicant under severe and unjustifiable anxiety and

stress;

(3) The bringing of those charges in circumstances where some at least of them were wholly unsupported by evidence;

(4) The arrest of the applicant, an elderly man, in the early hours of the morning;

(5) The bringing of an application under the Police Property Act, 1897 to determine the ownership of the blank ammunition, an

application which was wholly unnecessary but calculated to cause further distress to the applicant;

(6) The bringing of trivial and unrelated charges, i.e. the alleged obtaining from a pharmacist of drugs by false pretences and

the possession of blank ammunition which were subsequently struck out on the application of the D.P.P. which were designed to

cause further stress to the applicant;

(7) The failure to give any information as to the likelihood of further charges;

(8) The delay which ensued from the applicant’s arrest and interrogation on 6th March, 1996 to his being charged on 30th

October, 1997;

(9) The improper action of the Gardaí in initiating widespread and injurious publicity as to the charges in the media.

Undoubtedly any action by the prosecuting authorities or the Gardaí which violates an accused person’s right to due process in the

investigation and prosecution of criminal charges against him may bring about a situation in which the public interest in ensuring the

prosecution of the charges must yield to the requirement that the accused’s constitutional and other legal rights be upheld. The

argument on behalf of the applicant, however, appears to rest, in part at least, on the premiss that a number of actions on the part

of the Gardaí which, individually considered, did not amount to a violation of due process of that nature, when considered collectively

may amount to what was described as “oppression” justifying the prohibition of the trial. I am satisfied that there is no legal

foundation for that submission and, not surprisingly, no authority in support of it was advanced in the High Court or this court.

As to the individual actions in respect of which complaints were made, I have come to the following conclusions.

(1) While the thirty four affidavits were undoubtedly filed at a relatively late stage in these proceedings, I am satisfied that the

applicant was not prejudiced in the defending the proceedings by that fact.

(2) It was entirely within the powers of the D.P.P. to bring all 237 charges at the same time before the court and the

applicant’s rights were not violated in any way by his having adopted that course. For them to have been brought in stages

would not, in any event, have contributed to an expeditious trial, contrary to the interests of the applicant himself.

(3) Whether any of the charges are unsupported by evidence is not an issue which arises in these judicial review proceedings.

It is to be borne in mind that the applicant chose to institute the present proceedings as soon as the charges were preferred

against him. Neither the High Court nor this court is, accordingly, in a position to say what material will be included in the Book

of Documents which, in the normal way, will be served on the applicant in the event of the prosecution proceeding. It is at that

stage, and only at that stage, that a court of competent jurisdiction – in this instance the District Court – can determine

whether the applicant should be returned for trial on these charges or not.

(4) I have no doubt that the applicant found the experience of being arrested at a relatively early hour in the morning at his

residence on these serious charges a traumatic experience. The same can be said of many aspects of the investigation and

prosecution of these charges, but it in no sense follows that the applicant’s constitutional or other rights have been infringed.

(5) It was a matter for the D.P.P. to decide whether an application under the Police Property Act, 1897 should be brought. It

was equally a matter for him whether he should proceed with, or discontinue, that application.

(6) The same considerations apply to the bringing of what were described as “trivial and unrelated charges”.

(7) The alleged failure of the D.P.P. to give information as to the likelihood of further charges, while it may have rendered the

subsequent preferring of those charges more traumatic than it otherwise would have been did not constitute any infringement

of the constitutional or other legal rights of the applicant.

(8) The question of delay on the part of the D.P.P. has already been dealt with at an earlier part of this judgment and need not

be considered further.

(9) It is conceded on behalf of the D.P.P. that the Gardaí, when an inquiry was made by a reporter, confirmed that video tapes

had been seized from a doctor in Cork, although without identifying the applicant or furnishing any further information. It is also

accepted that it would have been better practice not to give any such information. While the publication of an article in a

newspaper giving that information undoubtedly generated considerable publicity, I have no doubt that the publicity attendant

on the subsequent civil proceedings in the Circuit Court and on the judicial review proceedings brought by the applicant in an

attempt to have the complaints against him to the Medical Council heard in public were not in any way the responsibility of the

D.P.P. or the Gardaí and that the trial judge was correct in concluding that it would be artificial to attribute the blame for all

this publicity to the failure of the Gardaí to observe appropriate procedures in confirming to the reporter that there had been a

seizure of video tapes from a doctor in Cork.

I am satisfied, accordingly, that none of the matters relied on constituted a violation of the applicant’s constitutional or other rights

which would have justified the High Court in prohibiting the continuance of the prosecution.

I would dismiss the appeal and affirm the judgment and order of the High Court.