Judgment delivered the 29th day of January, 2010 by Denham J.
An appeal
1. This is an appeal by Dermot Sparrow, the applicant/appellant, referred to in this judgment as “the applicant”, from the decision of the High Court (Sheehan J.) delivered on the 1st April, 2009.
2. The applicant seeks to prohibit his trial in the District Court on two charges relating to foot and mouth disease forms, on the basis that his health is so precarious that proceeding with the trial would put his life at risk.
Summary proceedings
3. On the 8th April, 2003 summary proceedings were initiated against the applicant by the first named respondent in the District Court Area of Dunlavin, District Number 16, in respect of offences alleged to have been committed on the 9th April, 2001.
4. The offences with which the applicant is charged are:-
(i) That the applicant did grant or issue an instrument to wit a Foot and Mouth Disease five form so issued on the 9th April, 2001, at Jigginstown, Naas, Co Kildare in contravention of s.49(1)(h) of the Diseases of Animals Act, 1966 to 2001 (as amended by s.35 of the National Beef Assurance Act, 2000);
and
(ii) That the applicant did offer an instrument so issued on the 9th April, 2001, at Jigginstown, Naas, Co Kildare in contravention of s.49(1)(i) of the Diseases of Animals Act, 1966 to 2001 (as amended by s.35 of the National Beef Assurance Act, 2000).
Before Judge Hamill
5. On the 14th November, 2007 Judge Hamill, having heard evidence from all parties including the medical evidence advanced on behalf of the applicant, stated that he was not satisfied that exceptional circumstances existed such as in P.T. v. Director of Public Prosecutions [2008] 1 I.R. 701, and that the case should proceed. Judge Hamill considered the issue of the applicant's bronchitis and adjourned the matter for two months to the 14th January, 2008 at 10.30 a.m. before Naas District Court for the purpose of fixing a date for trial.
Judicial Review
6. On the 3rd December, 2007 the High Court (Peart J.) gave leave to the applicant to apply by way of judicial review for the following reliefs:-
(i) An order of prohibition prohibiting the trial of the applicant and prohibiting the first named respondent from pursuing the prosecution;
and
(ii) An order of certiorari of the decision of Judge Hamill on the 14th November, 2007.
7. The grounds for the application for judicial review were as follows:-
(i) The wholly exceptional circumstances of the case make it unfair or unjust to put the applicant on trial in that there is a very high risk of sudden death at trial.
(ii) The very high risk of sudden death at trial in itself constitutes a real risk of an unfair trial.
(iii) The constitutional right of the applicant to trial in accordance with the law is breached in that his ability to defend himself properly has been severely prejudiced in that this case and associated court appearances have been the cause of stress to the applicant and any further court appearances could result in the sudden death of the applicant.
(iv) The constitutional right to life of the applicant outweighs the community’s right to prosecute the applicant when the applicant has a track record of acute cardiac syndrome in relation to the events being considered by the District Court and where the risk of an incident being fatal is approximately 50%.
(v) The decision of Judge Hamill is irrational and flies in the fact of the uncontested and accepted expert evidence of the consultant cardiologist in that Judge Hamill decided:
(a) to adjourn only on the grounds of bronchitis;
(b) to try to separate the applicant’s bronchitis condition entirely from
his underlying heart condition;
(c) when the risk assessment of the consultant cardiologist was that any further court appearances could result in the sudden death of the applicant;
(d) having accepted the risk assessment of the consultant cardiologist that the fact that the applicant has had more cardiac incidents in relation to the case means that he is more likely to have another one.
8. The respondents opposed the granting of the reliefs on a number of grounds, these included the following:-
(a) The applicant has taken previous judicial review proceedings, entitled Dermot Sparrow v. Judge Connellan and the Minister for Agriculture and Food [2006] IEHC 231, where he had canvassed several issues, including his health. On the 22nd June, 2006 in his judgment in that case de Valera J. considered the issues of delay and bias. On the issue of bias he held:-
"In this matter I am satisfied that there is no evidence whatsoever of actual bias on behalf of the first named respondent but that an independent “reasonable person” might, legitimately, conclude from the statements and actions of the first named respondent that “a fair and independent” hearing could not take place and I am therefore satisfied that I should grant an order for prohibition against the first named respondent in the terms of paragraph 4(b) of the statement of grounds in the notice dated the 21st July, 2004."
Having prohibited the matter continuing in front of the District Judge named in those proceedings, who is not the District Judge in these proceedings, the learned trial judge went on to state:-
"In reaching this decision I have considered the arguments concerning the venue for the proposed hearing and the applicant’s stated medical condition both of which matters, among others, are matters for the judge eventually assigned to hear this matter."
(b) The respondents submitted that the health grounds had been ventilated and decided, were res judicata.
(c) Further, it was submitted that Judge Hamill had acted lawfully and within jurisdiction in hearing evidence, including the applicant's medical expert witness, and having heard all the evidence decided that the matter should proceed.
9. On the 1st day of April, 2009 Sheehan J. delivered his judgment in this matter. His conclusion was as follows:-
“28. While Mr. Hogan has argued that the health factor was the dominant one in the Supreme Court’s decision in P.T., it is in the first place important when considering that judgment to note the following remarks of Denham J. at para. 17:-
'In issue is the exception referred to in H. v. Director of Public Prosecutions: whether it would be unfair or unjust to put the applicant on trial. Thus the relevant factors require to be identified and then a balancing exercise undertaken by the court.
In this case the factors relevant to the applicant’s position are: (i) it is an old case, while this is not unusual in such a prosecution it is a factor, (ii) the applicant is elderly, in his 87th year, and (iii) the ill-health of the applicant.'
29. Denham J. then went on to consider the factors relevant to the prosecution which required to be considered including that, prosecutions are taken on behalf of the people of Ireland by the Director of Public Prosecutions, the public nature of criminal law and the fact that the court does not interfere lightly with the decision of the Director of Public Prosecutions. She said that no single factor rendered P.T. an exception.
30. The health of P.T. in that case must be looked at in the light of those factors. P.T. was in his 87th year and facing charges in respect of events alleged to have occurred more than 36 years previously. One does not need to be a forensic psychologist, or a neurologist, to realise the memory difficulties that arise in such cases, not only for an accused but for any potential witnesses who might be relevant to such a trial. It is also probable in such cases that relevant witnesses to events over 35 years ago may be deceased. The remarks of Hardiman J. in J.B. v. Director of Public Prosecutions in relation to the difficulties of an accused person in these circumstances, which I have quoted above, are particularly apt.
31. On the other hand, in the present case, the applicant is 66 years old, some 20 years younger than P.T. was when he made his application. While the applicant has undoubtedly serious health problems, he nevertheless continues to work, to drive and to give evidence in court cases. Although he is not in full time employment his health problems must be viewed in the light of this activity.
32. Also the memory problems that I have referred to, which arise in old cases, do not arise in this case. It is clear from the grounding affidavit of the applicant’s solicitor that events complained are alleged to have occurred in or about the time of the search of the applicant’s premises. The applicant’s grounding affidavit in his first application for judicial review referred in some detail to events that occurred at the time his premises were searched. And while there is some delay in this case there is no prosecutorial delay, and charges were brought within a period of two years of the events complained of.
33. It is also relevant that the second named respondent heard and considered the evidence of the applicant’s medical consultant, Dr. Moore, and adjudicated thereon.
34. I hold that the above matters not only distinguish the present case from that of P.T., but are of such significance that it would not be appropriate for me to exercise my discretion in favour of the applicant. Accordingly, I refuse the reliefs sought.”
Grounds of Appeal
10. The applicant has filed five specific grounds of appeal, being:-
(i) That the learned trial judge erred in law at paragraphs 32 and 33 of the judgment to the extent that he weighed against the applicant’s case the fact that Judge Hamill had heard and considered and adjudicated on the evidence of the applicant’s medical consultant. This was uncontradicted expert evidence of the consultant cardiologist affirmed by the consultant cardiologist on affidavit in the judicial review proceedings that the risk to the applicant’s health was so considerable that as a matter of basic constitutional fairness the court should intervene to restrain the trial.
(ii) That the learned trial judge erred in law to the extent that he substituted his own view for the view of the expert consultant cardiologist at paragraph 31 of the judgment where he found that “While the applicant has undoubtedly serious health problems, he nevertheless continues to work, to drive and give evidence in court cases. Although he is not in full employment his health problems must be viewed in the light of this activity.”
(iii) The learned trial judge erred in law in the manner in which he construed the decision of this Court in PH v. Director of Public Prosecutions.
(iv) That the learned trial judge erred in law in holding that as Judge Hamill had assessed and considered the evidence, this was a factor which militated against the relief sought by the applicant, whereas the true position was that Judge Hamill had given no or no adequate reasons for his conclusion and, furthermore, that this conclusion was in the teeth of the uncontradicted medical evidence.
(v) That the learned trial judge erred in law in failing to have due regard to the said uncontradicted evidence and the fact that, viewed objectively, the applicant is not medically fit to face these criminal charges, such that the failure to prohibit the trial amounts to a violation of his constitutional right to a fair trial.
Decision
11. In essence the applicant seeks to prohibit his summary trial in the District Court on the basis that there is medical evidence to the effect that his health is so precarious that proceeding with the trial would put his life at risk.
Medical evidence
12. There was a dispute between the parties as to the precise oral medical evidence given before Judge Hamill. There is no transcript. The learned High Court judge gave the benefit to the applicant and made his decision on the account of the evidence given on behalf of the applicant. In all the circumstances of this case I would affirm that approach and will take the same course.
13. The applicant has had heart trouble since 1992. His G.P. reported in 2004:-
“Mr Sparrow has had significant heart trouble since 1992. At that time he had a heart attack. He subsequently had an angiogram at which angioplasty was undertaken. He was put on long term medication at that time.
His condition remained relatively stable until April 2001. A stressful event in Naas, Co. Kildare precipitated a heart attack. Mr Sparrow was unable to get immediate medical attention at that time as he was not a patient of the medical practices in Naas. Since that time I have recommended that Mr Sparrow should avoid stressful situations. I have found that his involvement in court attendances and hearings are very stressful for him. They have a detrimental effect on his blood pressure and heart function.
Mr Sparrow’s most recent consultation was on 4/3/2004. He consulted me professionally because of increasing chest pain. On examination he had an altered pulse. In view of the worsening chest pain and pulse change I have recommended to Mr Sparrow that he get an urgent appointment for a review by his cardiologist. Appropriate arrangements are being made in relation to examination by his cardiologist which will most likely include inpatient cardiac investigation.
I feel Mr Sparrow’s cardiac condition is very serious, increasing chest pain is a serious symptom and could be life threatening at any time.”
His cardiologist, Dr David P. Moore reported in 2004:-
“The above has been under my care for treatment of coronary artery disease and hypertension.
He recently underwent re-investigation of his coronary disease.
Mr Sparrow has been advised that he should avoid unduly stressful situations as he is at significant risk of a heart attack or stroke despite his ongoing cardiovascular medication.”
In July 2004 Dr David P. Moore wrote:-
“Further to my report of 18th June 2004, I write to re-affirm my contention that the above named is suffering from significant coronary artery disease and hypertension. He has recently undergone angiography and has been strongly advised to minimise exposure to stressful situations.”
14. Medical evidence was given by Dr Moore before Judge Hamill at Naas District Court on the 13th November, 2007. This was described in the judgment of the High Court as:-
“10. On 13th November, 2007, the applicant’s cardiologist, Dr. David Moore, gave evidence. He first stated in answer to a question from the applicant’s counsel that it was difficult to quantify the health risks faced by the applicant. He then stated that the applicant had significant heart problems since 1992, when he first had a heart attack. He further stated that in April, 2001 the applicant suffered severe chest pains and as result of which he was admitted to the cardiac unit in Tallaght hospital. He stated that the applicant had significant coronary artery disease and had unusual complications in this regard. He stated that the applicant had spontaneous dissection, meaning that the internal lining of his heart had torn, that this was a very rare condition in adult males and was strongly associated with intense distress. Dr. Moore said that the applicant was treated and again seen by him in February, 2007 when he noted that there had been a progression of the applicant’s coronary disease and that the applicant had developed florid diabetes. Dr. Moore further stated that the applicant was then exhibiting all the signs of an acute stress disorder.
11. When asked if he could explain what might happen if the applicant was to attend court for trial, Dr. Moore stated that, given the unexplained collapses of the applicant, his assessment was that the risk of sudden death was very high. Dr. Moore said that while he could not put a percentage on that risk he was in no doubt at all that this case and associated court appearances had been the cause of stress to the applicant and in his view any further court appearances could result in the sudden death of the applicant. Dr. Moore further stated that when the applicant had been admitted to University College Hospital, Galway, earlier in the year following a collapse, the doctor dealing with the applicant felt that the likely cause of the applicant’s collapse was arrhythmia and as a result of this diagnosis a coronary recorder device, commonly known as a pacemaker, was implanted. Dr. Moore stated that there had been no successful recording since that time and explained that a recording would be activated after an event.
12. Dr. Moore was asked if he had been aware of any further collapses since July, 2007. He said that he was not.
13. Dr. Moore also subsequently confirmed in an affidavit sworn on the 29th April, 2008, that he had advised the applicant’s counsel that the applicant would not be in a position to give instructions for the purposes of cross examination during a trial, and further confirmed para. 35 of the grounding affidavit of Jennifer Clarke in which she had confirmed medical advice received to the effect that there was a serious risk of a fatal incident occurring if the applicant were to give instructions during the trial.
14. In the course of the District Court hearing relating to the applicant’s health, Judge Hamill asked Dr. Moore to comment on the following passage from the judgment of Denham J. in P.T. v. Director of Public Prosecutions [2007] I.E.S.C. 39:-
'At present he is quite short of breath on pretty minimal exertion and has great difficulty in moving around. When I last saw him on [the 21st December, 2006,] he had heart failure, but his heart failure is well controlled on his medication. He also suffers quite a bit from stress and given the unstable nature of his cardiac condition, I feel that the stress associated with a criminal trial could have a major effect on his health and possibly precipitate heart failure or acute myocardial infarction.'
15. The quotation read by Hamill J. to Dr. Moore is a direct quotation of the medical evidence of a Dr. John Kenny relating to the applicant’s health in P.T. Replying to Judge Hamill, Dr. Moore stated that the evidence in the applicant’s case was more compelling in that he already had a track record of acute cardiac syndrome in relation to the events being considered by the court. He stated that there was a stronger evidence base than that presented to Dr. Kenny, and stated that the risk of the applicant suffering heart failure was 50%. Hamill J. was also told that day that the applicant had bronchitis.”
15. There was a further report from Dr Moore dated 28th April, 2009 which stated:-
“[The applicant] was with me for consultation on the 23rd April 2009. Mr Sparrow’s condition remains very much as outlined in my previous statement. He has not had any further collapse or severe chest pain episodes but he continues to have uncontrolled hypertension, impaired glucose tolerance, I understand, and ongoing sleep disturbance and daytime hypersomnolence. He continues to be on his usual cardiac medication but his blood pressure is poorly controlled at present. I am arranging further investigations and it is likely that he will require additional medications for this. Overall I do not feel that his situation had changed substantially from the position, which I set out in correspondence and in evidence for Judge Hamill in Naas District Court. There may be some further issues raised by the 24-hour blood pressure monitor, which will be performed in the next week or 10 days.”
16. Thus the medical situation is that the applicant has had heart disease since 1992. He is under the care of a G.P. and a cardiologist, Dr. Moore. The applicant has had an angiogram and a pace-maker implanted. He has been advised to avoid stressful situations. Dr. Moore's reports were before Judge Hamill, who also heard Dr. Moore's oral evidence. Dr. Moore gave evidence that any further court appearances could result in the sudden death of the applicant and that there was a serious risk of a fatal incident occurring if the applicant were to give instructions during the trial.
17. However, there was other evidence also before Judge Hamill. This included the following:-
(a) The applicant continues to practice as a veterinary surgeon, although in a limited fashion;
(b) the applicant drives a car;
(c) the applicant attends court in his professional capacity to give evidence; and
(d) the applicant has instructed his legal team in these and other proceedings relating to the charges over the years since the charges in the District Court were served.
Judicial Decision
18. The appeal is based on the medical evidence and the misconception that Judge Hamill had no choice in his decision once the medical evidence was given on behalf of the applicant. This fundamental error undermines the whole appeal. In a situation such as arose before Judge Hamill, where medical evidence is given on behalf of one party in a case, the court is not bound to comply with that evidence. The duty and responsibility of the judge is to hear, consider and assess all the evidence and then to make a judicial determination. The requirement that the judge make a judicial decision is not trumped by medical evidence on behalf of one party. The decision to be made is that of the judge, on all the evidence, it is not a medical decision for the applicant's cardiologist.
Exceptional circumstances
19. It is only in cases where there are exceptional circumstances that a court will intervene and make an order prohibiting a prosecution and it will do so only if there is a real or serious risk of an unfair trial. The burden rests upon an applicant to show that arising from the facts of the case there is a real or serious risk of an unfair trial. The applicant rests this application upon his medical condition, submitting that his health is so precarious that proceeding with the trial will put his life at risk.
20. There is no doubt that the applicant has a heart condition, indeed he has had it since 1992, and it is serious. Nor is there any doubt that stress is bad for persons with heart disease. Further, most people will find that attending court as a defendant is a stressful situation which does give rise to anxiety. I have no doubt that even though the applicant gives evidence in court as an expert witness the experience of being a defendant is and would be stressful for him. However, the fact that a person has heart disease, and that stress is bad for such persons, and attending court is stressful, does not mean that such a person may not be prosecuted.
21. I would distinguish the circumstances in this case from those in P.T. v. Director of Public Prosecutions where the decision to prohibit the trial was not based on the medical evidence alone. That decision was grounded on the cumulative effect of several factors. Those factors were: (a) it was a case being brought after many years, with the consequential difficulties in such cases; (b) that accused was an elderly man, being in his 87th year, and (c) there was evidence of that accused's ill health.
22. I have read the medical reports, and the account of the oral evidence given by Dr. Moore before Judge Hamill. I am satisfied that no error was made by Judge Hamill, nor by the High Court, in their approach taken to the medical evidence.
23. It was also submitted that the learned High Court judge erred in the manner in which he construed H. v. Director of Public Prosecutions [2006] IESC 55. Fundamentally that case was about the developing jurisprudence as to delay in bringing a prosecution for offences of child sexual abuse. However, reference was made to the judicial statement that:
"The Court does not exclude wholly exceptional circumstances where it would be unfair or unjust to put an accused on trial."
It is that sentence upon which the applicant relies. It is a fundamental principle of our jurisprudence. The basis of the applicant's claim is that it would be unfair or unjust to put him on trial because of his ill-health. For the reasons given, in light of all the circumstances of the case, I am satisfied that the approach and decision of Judge Hamill, and the learned High Court judge, were not in error.
24. There is no doubt that attending court and anticipating such attendance are stressful. In this case the two District Court summonses were issued in 2003. The applicant brought judicial review proceedings which were dismissed by the High Court (de Valera J.) on 22nd June, 2006. The applicant brought these judicial review proceedings, relating to his health (which had been referred to by de Valera J. as being a matter for the trial judge), which proceedings were dismissed by Sheehan J. on the 1st April, 2009. The applicant has appealed that decision to this Court. Consequently, by his own actions, the applicant has postponed these proceedings by years. This matter alone must have been an additional stressful factor for the applicant. However, it is now time to let the prosecutions in the District Court proceed, where the trial judge will have full jurisdiction, as always, to ensure that the proceedings are fair, and to assess the situation before him or her at all times. After judicial review proceedings a trial judge retains his or her constitutional duty to ensure that there is a fair trial.
Conclusion
25. For the reasons given I would dismiss the appeal.