Costs refused to BTSB biochemist in Hepatitis C case
A former principal biochemist with the Blood Transfusion Service Board who had been charged in relation to the infection of women with Hepatitis C has had an application for legal costs refused.
Ms Cecily Cunningham (aged 68) was charged with seven counts of unlawfully administering infected Anti-D medicine resulting in grievous bodily harm. All charges were dropped by the Director of Public Prosecutions in January 2008. Mr Shane Murphy SC, prosecuting said: “Changes in evidential subjects were such that a prosecution could not have been sustained.”
Ms Cunningham of Hollybrook Road, Clontarf had denied all charges and previously lost a challenge in the High Court to have the case thrown out. The case was under judicial review when the decision was made not to proceed by the DPP.
The hearing for costs was first brought before Judge Desmond Hogan at Dublin Circuit Criminal Court in October last year and had been adjourned to today for judgement.
Judge Hogan said he was making his decision based simply on the witness statements as outlined in the book of evidence because he did not have the advantage of hearing legal argument in relation to the admissibility of such statements, as would normally occur in a criminal trial.
He said he was satisfied, “having discounted such evidence as it appears to me should have been discounted”, that there was sufficient evidence to have allowed the case to go before a jury for their deliberation.
Judge Hogan noted that a nolle prosequi was entered by the State in January 2008 after the DPP had been made aware of the death of a “material witness”, Professor J J Hoppe, the testimony of whom the prosecution case was heavily reliant on.
He noted that the death of Prof Hoppe “considerably weakened the prosecution's case” and although they had not been aware of his demise until almost three years later, they informed the defence of it as soon as they were.
Judge Hogan said he was satisfied the DPP then had made every effort to get another witness to give evidence in his place but when this proved impossible the charges were dropped against Ms Cunningham.
He said he was satisfied that if Mr Justice Liam McKechnie, presiding over the High Court proceedings, had been aware of the death of Prof Hoppe, it would not have affected his judgement, as Mr Justice McKechnie stated himself in his ruling that he would have left any matters regarding problems with witnesses to the trial judge.
Judge Hogan said that it was “distressing in a case such as this that because a nolle prosequi was entered, Ms Cunningham may feel she is not in a position to vindicate both her good name and character” but he added “the presumption of innocence exists, her good name and character was always with her and remains so and rightly so and it could only be taken away from her if a jury were to convict her.”
“Her status in that regard could be in no way changed by the entering of a nolle prosequi,” the judge said.
Judge Hogan said he was refusing costs before he added: “It does not appear to me that the law allows otherwise.”
Mr Shane Murphy SC, prosecuting, said there was no requirement for the court to know why charges were dropped, in the same way they did not have to know why a jury acquitted a defendant in a trial.
Mr Michael McDowell SC, for Ms Cunningham, read from an affidavit before the court that an expert witness for the State, Prof Hoppe died in June 2004 but the gardai said they did not learn of his death until three years later.
He submitted that his client should be entitled to the full costs of her defence because the evidence against her “barely came to knee height”.
He also said it was perfectly reasonable that she would incur “substantial” legal costs because “short of murder or treason, it is hard to think of more serious charges than deliberately setting out to ruin people’s lives.”
“Her reputation and liberty were on the line”, Mr McDowell said. “This case was life-threatening to her because it would have permanently altered her life.”
Mr Murphy said he was resisting the application because the case was brought in a fair manner and Mr Justice MeKechnie had previously decided it was fit to go to trial. He said there was no evidence of misconduct by the Gardaí or DPP and Ms Cunningham’s rights had never been violated.
He said the long delay in proceedings were mainly caused by Ms Cunningham’s legal team initiating a judicial review and was not the fault of the prosecution.