Supreme Court overturns doctor's indecent assault conviction

By Ann O'Loughlin

A doctor's conviction for indecent assault of a teenage girl while attending her home where her mother was terminally ill has been overturned by the Supreme Court.

The DPP has been given two weeks to decide whether to seek a retrial.

The five judge court's unanimous judgment addressed legal issues as to whether a person who gives an exculpatory statement, and then responds to questions from gardaí by referring to it and saying they have nothing further to say, is exercising their right to silence.

Giving the court's judgment, Ms Justice Iseult O'Malley held the appellant was exercising his right to silence and there was a real risk of prejudice to him following the prosecution's disclosure to the jury, without advance notice to the defence, of a Garda memo of his full interview with them and not just his statement.

The trial judge did not outline the basis for finding that evidence admissible or why he rejected the defence complaint of prejudice, she said.

It must be assumed he considered the evidence relevant and probative and not unduly prejudicial but, in that case, it was necessary to give guidance to the jury as to how it should be treated.

That was not done and the Supreme Court could not discount the possibility the jury drew an adverse inference to the effect the deliberate refusal of the appellant to engage with specific questions from gardaí reflected adversely on the credibility of his sworn evidence.

That was "impermissible", the appeal must be allowed and the conviction quashed, she said.

The man was convicted of one count of indecent assault and a two year sentence was imposed, later reduced on appeal to one year.

The conviction arose from a complaint in 2010 by a woman alleging that, during a home visit to her terminally ill mother in 1989, the doctor indecently assaulted the complainant during a medical examination of her.

During an interview with gardaí in 2011, the appellant answered certain uncontroversial questions and, when asked whether he remembered a named girl being a patient of his, said he had a statement concerning her and provided that.

In the statement, he said, inter alia, the complainant attended him as a patient on a few occasions, he did not recall ever physically examining her and was shocked and distressed at the "blatantly false" and "extremely damaging" allegations.

When asked questions arising from the statement, he said he had nothing to say other than what was in the statement.

After the Court of Appeal rejected his appeal against conviction, the Supreme Court agreed to hear a further appeal on the basis the case raised issues of law of general public importance.

In its judgment, Ms Justice O'Malley said the entire interview memo was given to the jury at the trial.

The man was not asked about the interview in evidence or cross-examination, no reference to it was made in closing speeches for either side and the trial judge had not referred to the contentious part of the interview in his charge to the jury.

There was "a real risk" what occurred in the trial was contrary to the principles established in the legal authorities concerning the right to silence, a right protected under the Constitution, common law and the European Convention on Human Rights, she said.

At issue are the consequences of a suspect's response to Garda questioning, she said.

The right to silence can be waived but, where there is dispute about that, the prosecution must prove it beyond reasonable doubt.

A voluntary statement amounts to a clear waiver of the right to that extent but it does not follow the suspect waives the right concerning either a prior or subsequent refusal to answer questions.

A waiver cannot be held to be implied by ambiguous words and it is "essential" to consider the context.

Her own view of the appellant's interview was he was refusing to answer questions from gardaí about the complainant's allegations and that was an exercise of the right to silence.

The problem was, because of how events unfolded in the trial, the issue was never put up for resolution by the trial judge until after the contentious evidence was given, she said.

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