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THE COURT OF APPEAL

Record No: 256/2022

 

Edwards J.

McCarthy J.

Burns J.

 

Between/

THE PEOPLE (AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS)

Respondent

V

Marlies walsh

Appellant

 

JUDGMENT of the Court delivered by Mr. Justice Edwards on the 30^th of November 2023.

Introduction

1.            This is an appeal brought by the appellant against her conviction in respect of one count of harassment of a Dr Atif Awan, contrary to s. 10 of the Non-Fatal Offences Against the Person Act 1997 (i.e., "the Act of 1997"). It is also understood that the appellant has appealed against the sentence imposed upon her following her said conviction, being a sentence of two years' imprisonment suspended upon certain conditions for a period of two years, which sentence was to date from the 24^th of November 2022. In addition to the said sentence, the sentencing court made an Order pursuant to s. 10(3) of the Act of 1997 directing that the appellant shall not communicate by any means with Dr Atif Awan for a period of 20 years from the said 24^th of November 2022.

2.            This judgment deals with the appellant's appeal against her conviction only. In circumstances where the appellant was re-arraigned at the request of her defence team in the course of her trial, and pleaded guilty upon re-arraignment, the appeal amounts in substance to an application to set aside that plea of guilty. In that regard, the Notice of Appeal which is dated the 19^th of December 2022 specifies three grounds on which she seeks to do so, namely: (i) "ineffective assistance of counsel", (ii) "quality of investigation", and (iii) "plea under duress".

The Background to the Case

3.            The Court of Appeal does not have the Book of Evidence. Evidence as to the background to the case is provided by a transcript of the opening speech to the jury of prosecuting counsel at the trial hearing on the 6^th of October 2022, which occurred prior to the appellant being re-arraigned and pleading guilty; and also by testimony given by Garda Eimear Cantwell (otherwise "Garda Cantwell") at the sentencing hearing on the 24^th of November 2022, in respect of which we also have a transcript. While the appellant has sought to proffer further background details in a document entitled "Accuracy of representation/Appeal" (being purported written legal submissions filed by her in connection with the appeal), such material is not evidence. The appellant has neither testified as to the matters she alludes to before the Circuit Court, nor has she filed any affidavit in connection with this appeal. There is no acceptance by the respondent of the correctness of her assertions, many of which are controversial, particularly some of those with respect to her dealings with the victim, and other personnel within Temple Street Hospital where he works. Matters which the appellant seeks to rely upon before us, which go beyond what Garda Cantwell has stated in her sworn testimony, have not been deposed to on oath, and counsel for the respondent has had no opportunity to cross-examine with respect to such matters.

4.            Garda Cantwell told the Court on the 24^th of November 2022 that she had become involved in the case in October 2018 having been asked to have an informal conversation with the appellant about her visits to Temple Street Hospital. She learnt in that context that the appellant had been calling to the hospital subsequent to her child (a son) having been a transplant patient there. Post his transplant, the appellant's son had been in the care of Dr Atif Awan (the injured party named in the indictment) from in or around 2017. She stated that there had also been another doctor involved in the appellant's son's care, a Dr Michael Riordan, who was the child's primary consultant.

5.            Garda Cantwell stated that Dr Atif Awan became aware that the appellant had expressed an interest in being involved with advocacy for families and patients. It was discussed at a team meeting as to whether this might be beneficial to the hospital and to patients. However, it was decided that it was not required because there were trained professionals and teams that focus on that particular area already in place. It was communicated to the appellant that they were already heavily involved with the Irish Kidney Association, and that the role that she was seeking was effectively already occupied.

6.            Subsequent to this, the care of appellant's son was moved to Cork (the appellant and her family being from that county) and the appellant had no further dealings as a patient, or a patient's relative, with Temple Street Hospital. Notwithstanding this, the appellant continued to contact Temple Street Hospital and to contact Dr Riordan. In or around this time, Dr Riordan again communicated to the appellant, in somewhat stronger terms than were previously made, that there was no role in patient advocacy for the appellant and he urged her to focus on her son's care. Following a meeting with Dr Riordan, the appellant indicated that she wished to speak with Dr Awan, but Dr Riordan was not agreeable to this.

7.            Garda Cantwell gave evidence that subsequently the appellant arrived unannounced in Dr Awan's office, and that he had encountered her standing at the door. Dr Awan spoke with her, and he told her that Dr Riordan had already explained the view of the team.

8.            Garda Cantwell testified that in February 2018 other parties in the hospital met the appellant at the renal clinic in the outpatients' department. By this stage her son was being medically cared for in Cork, and she no longer had any business in Temple Street Hospital. Notwithstanding this, numerous communications had been received by the hospital from the appellant via telephone, and the appellant had made numerous unannounced visits to the hospital. Dr Awan informed the appellant that this was becoming too much and was causing a disruption. Dr Awan informed gardaí that he had spoken with the appellant for about 20 minutes and had listened to her as she outlined her concerns to him first hand. She gave examples of perceived deficiencies in adult care, and he said that she was taken aback when he informed her that all the personnel that she had described (as being required to provide comprehensive care) already existed in the renal team at Temple Street Hospital. He confirmed to her that they had psychologists and a social worker attached to the team and so on. He expressed the hope that he had clarified the position for her, and he stated that this would be their final meeting. Dr Awan stated to gardaí that the appellant acknowledged this and had expressed her thanks. Dr Awan thought that that would be the end of the matter.

9.             Notwithstanding that expectation, the appellant continued to persistently make phone calls to the hospital and to appear at the hospital unannounced. In March 2018, Dr Awan received a parcel containing the appellant's curriculum vitae, and identifying the role that she wished to occupy. Following this, it was decided to report the matter to the manager of clinical services, and also to the risk manager, at Temple Street Hospital. At a meeting on the 7^th of March 2018, involving those personnel, it was determined that future correspondence and communications received at the hospital from the appellant would be directed straight to the manager of clinical services. It was further concluded that the appellant's communications were becoming a persistent problem and were disruptive to patient care.

10.         The hospital continued to receive letters from the appellant. These were acknowledged by the immediate recipients but were then diverted to hospital management. Dr Awan (who was one such recipient) explained to the appellant in correspondence that this was how her communications would be dealt with. Despite this, the appellant continued to contact Dr Awan directly. In these communications she continued to raise the prospect of a role for her as a "national patient's services coordinator (sic)".

11.         On various occasions, in or around April 2018, the appellant contacted the hospital, asking to speak directly to Dr Awan. He declined, being unwilling to do so unless it was necessary in relation to the care of her child. On one occasion in April 2018 Dr Awan was informed that the appellant had appeared twice in one day in the kidney ward where he worked, and that she was looking to speak with him. Further, he was carbon copied on emails that she persisted in sending to the hospital, saying that she was still keen to be a patient advocate, and that she had spoken with a doctor from Beaumont who had advised her to connect with Dr Awan in this regard. Dr Awan informed gardaí that he was surprised by this. The appellant had also indicated in an email that she was going to attend a particular symposium at which Dr Awan was due to speak the following week.

12.         The symposium in question took place on the 3^rd of May 2018. It was a rare disease symposium held at University College Dublin, and Dr Awan was an invited guest speaker. He told gardaí that he was mindful from the beginning of the possibility of the appellant showing up. On the morning of the symposium there had been a coffee reception and he observed the appellant there. She attempted to speak to him as he was walking into the hall, but he politely refused. He reported this encounter to hospital management subsequently.

13.         In his statement to gardaí made at a later stage, Dr Awan described incidents and occurrences involving the appellant in the period from March 2018 to June/July 2018.  He complained that what he described as her increasingly insistent means of contacting staff and arriving unannounced to the clinic, and of phoning members of staff frequently, was becoming a burden to staff, and was becoming obstructive to patient care. There had been various letters and phone calls received during that period, and there was a persistent pattern of contact with the hospital. On one occasion the appellant had left a message with Dr Riordan which was suggestive of an issue concerning her son's care; but when she was contacted it was unclear that there was any concern about her son's care. Dr Awan stated that he received yet further emails and correspondence indicating to him that the appellant was contacting the outpatients' department and asking to speak with him by name. He had stated that it was starting to disrupt his duties. It was not possible for the hospital to recommend any person for the post she was contending for, and that had been clearly communicated to the appellant.

14.         On the 14^th of August 2018 Dr Awan received an envelope. When he realised that the envelope was from the appellant, he was very concerned and alarmed. It had contained a small booklet, handmade, tied with ribbon on the front of which was written "CPAP". CPAP is an acronym for a piece of artificial breathing equipment. There was also a post-it note saying "creative streak", and containing other words that made no sense to him. On the second page of the booklet the word "TAC" was written. TAC is an anti-rejection drug. Beside it was written "trust and communication". Under this was a post-it saying "Chat about this". On the final page of the booklet the word "Myfortic" was written. This was interpreted by Dr Awan as being a play on words, on unfortunate logic. Myfortic is the name of another medication used to prevent rejection in transplant patients. Next to this was another post-it saying "real appeal". Dr Awan found most alarming and disturbing five accompanying A4 pages, showing a stick girl with two legs which resulted, on further progression, in her having no legs, accompanied by the caption "Not a leg to stand on but yet a lot to offer", and further post-it saying "I do hope you ring me, Marlies".

15.         On the 17^th of August 2018 Dr Awan received yet a further package from the appellant. As he opened it, he noticed that "NO RISK" was written, in capitals, on the inside of the envelope. There was an object inside, but it was not obvious what it was. Dr Awan later stated that he was extremely distressed and in fear. There were also three small white envelopes inside, labelled respectively "The Past", "The Present" and "The Future". Dr Awan  proceeded to open "The Past" envelope. He had no idea what it meant. Inside was a yellow note on which appeared the words "misled", "excluded", "doubt", "worry", "stress" and "no clarity", and the statement, "You can clear this up", accompanied by a smile drawn on the note. The appellant's business card, with her name, address, email address and contact number was attached, and on this card was written "AKA AJ change unsupported", accompanied by a drawing of a sad face. On the back of the card, again it had "TAC" written on it, with "Trust and Communication too low" also inscribed. Below that again, were the words "Not fake letter lived through with news".

16.         The second envelope labelled "The Present" contained another yellow note containing statements in the style of answers to questions asked on the TV quiz show "Who Wants to Be a Millionaire". Accordingly, the words "Your final answer" were written, with a big red cross beside it. Then the words "Sorry, try Again", and the words "Ask the Audience" with a line drawn through them, and another big red cross. There were also the words "Done", "Finally" and "Phone a Friend", the latter having a line drawn through it and the word "me" written beside it. Underneath this was the appellant's mobile phone number.

17.         The final envelope, captioned "The Future", contained a yellow note stating, "Well able, tried and tested, committed to the 90".

18.         The object in the envelope which accompanied these three envelopes was a spool of golden thread. Inside the spool was another yellow note stating: "Golden thread on a reel. It's in your hands now".

19.         Garda Cantwell told the sentencing court that Dr Awan did not know what all of this meant, that he was very distressed, and that at this point he was in fear of his safety.

20.         In consequence of all of this contact was made with the gardaí on the 18^th of August 2018, and Garda Cantwell had become involved. At this point, Dr Awan was indicating that he did not wish to make a formal complaint, but rather was asking that the gardaí would speak informally with the appellant. Garda Cantwell stated that they undertook to do this, and that it was she who in fact spoke with the appellant. She stated that she had had a long conversation with the appellant, at the end of which the appellant had indicated that she understood the position and that she would not return to Temple Street.

21.         Garda Cantwell stated that notwithstanding her conversation with the appellant, Ms. Walsh persisted in contacting the hospital. Emails and voicemails continued to be received by the hospital administration, the hospital's outpatients' department, the (renal or kidney) ward, and by others, often asking for Dr Awan by name, as well as asking for Dr Riordan and for members of the nephrology team. This further contact caused stress and anxiety to Dr Awan who did not want any further contact from the appellant.

22.         An internal hospital meeting was held in early October 2018. Legal advice was taken by the hospital. It was decided to apprise the gardaí that the problem previously advised to them was continuing, but not to escalate it to a formal complaint, in the hope that gardaí would speak to the appellant again and secure her desistance from seeking to make further contact with either the hospital or with Dr Awan. Following this, Garda Cantwell spoke informally to the appellant again on 12^th of October 2018, reiterating what had previously been said to her. However, notwithstanding this, on the 25^th of October 2018 Dr Awan received a message to say that the appellant had visited his clinic in the hospital that day looking to speak to him or to Dr Riordan. There was further contact from the appellant with hospital staff on the 6^th of November 2018. On the 19^th of November 2018 emails were received at the hospital from the appellant, albeit that these were not directly addressed to Dr Awan. However, one of these emails referenced the fact that the appellant had asked to speak directly to him about "possibilities in future potential". A letter was sent to the appellant on the 20^th of November 2018 by the Chief Executive of the hospital (a copy is in fact annexed to the appellant's submissions document entitled "Accuracy of representation / Appeal") asking her to stop, and to desist from contacting medical staff at the hospital. It was indicated in this letter that should she continue, a formal complaint would be made to An Garda Síochána.

23.         On 12^th of December 2018 yet another email was received at the hospital from the appellant indicating that she would like to meet and work with Dr Riordan, and further asserting that she had phoned the CEO of the hospital several times but that her calls had not been returned. A further email was received on 13^th of December 2018 indicating that the appellant had called again to the hospital. By this stage, there still had been no formal complaint by the hospital to gardaí, however gardaí had been made aware of the problem; there were regular meetings within the hospital involving the relevant clinical team, the hospital's head of security, and the hospital's risk manager, concerning the appellant's conduct, and hospital management were liaising regularly with gardaí.

24.         In January 2019 the appellant sent a card to the hospital. On the 7^th of February 2019 the appellant appeared in person at a renal clinic in the hospital, but Dr Awan was not present at the time. Then, on the 11^th of February 2019, a registered letter was received at the hospital from the appellant indicating that she wanted to speak to Dr Awan or to Dr Riordan. There were further attempts by her on this date to call other members of staff and personnel at the hospital. Garda Cantwell indicated that on this occasion a member of the hospital's administrative staff had reported (we infer to her management) that the appellant had become aggressive towards her, and that Dr Awan had learned of this and had found it worrying.

25.         A registered letter was sent by the hospital authorities to the appellant on the same day by way of response, indicating that it was inappropriate for her to attempt to communicate with hospital staff. The appellant had been indicating that she wished to raise an issue with regard to the care of her son. Dr Awan subsequently told gardaí that, upon learning of this, he had found it to be surprising that the appellant suddenly wanted to address her son's care. It was a sudden development; she had raised no concerns regarding his care previously, and in fact she had been highly complimentary of the care her son had received in Temple Street Hospital before returning to Cork. At any rate, the response sent to the appellant indicated that any issue regarding her son's care should be brought up with the nephrologist in Cork who was, at that stage, looking after her son. Dr Awan subsequently indicated to gardaí that he felt sorry for the appellant at this stage, and that he could to some extent understand the position she was in.

26.         On the 12^th of February 2019 the appellant arrived at Temple Street Hospital, asked for Dr Awan or Dr Riordan, and took a seat in the waiting area. Dr Awan was advised that she was there, and it was said that on hearing this he was stressed, anxious, and fearful of what she might do to him, to his colleagues, or even to herself. He, and others with him, remained in a nurse's office and the gardaí were contacted. The appellant was approached by the clinical services manager who took her into a different office and had a conversation with her. A Garda colleague of Garda Cantwell subsequently attended the hospital. At this point the hospital authorities felt that they had no choice but to make a formal complaint to gardaí concerning the appellant's conduct which they considered to be harassment, and they duly made a formal complaint.

27.         Following receipt of this complaint, a formal Garda investigation was initiated, and the appellant was asked to attend a Garda Station by appointment for the purpose of being interviewed, which she did. Garda Cantwell dealt with her and found the appellant to be co-operative. It is understood from Garda Cantwell's evidence that certain admissions were made by the appellant in the course of being interviewed. However, specific details of these admissions were not given in evidence, presumably because they were not required for the purposes of sentencing. Garda Cantwell confined herself to stating that the appellant had accepted during interview that she had sent "these things", which we infer from the immediate context in which this was said as referencing previously mentioned emails received by the hospital in December 2018, and also the card received there in January 2019.

28.         In April 2020 the appellant was charged with harassment of Dr Awan contrary to s. 10 of the Act of 1997. She was in due course served with a Book of Evidence and was returned for trial on indictment to the Dublin Circuit Criminal Court. The appellant was admitted to bail pending her trial, a condition of which was that she was required to stay away and not attempt to contact personnel at Temple Street Hospital. However, the appellant breached her bail conditions by attempting, on several occasions, to contact personnel at the hospital, leading gardaí to apply successfully for a warrant for her arrest, which warrant was in due course executed in consequence of which she was brought before the District Court which then heard an application by the prosecution to revoke her bail. The outcome of this was that she was given a second chance and re-admitted to bail. There were no further breaches of bail before the matter came on for trial.

29.         Garda Cantwell was cross-examined by counsel for the appellant. She confirmed that the appellant's son's care was the context in which the difficulties which had resulted in the charge had arisen; that the appellant's son had had health difficulties from a young age, and had ultimately received a kidney transplant at the age of 12 years, the appellant's husband being the donor. Garda Cantwell accepted that while the appellant's son had had a period of good health following the transplant, his health had deteriorated again, and he was at that point awaiting a further transplant. Garda Cantwell further accepted that the appellant's contacting of relevant parties, and her correspondence, was always in the context of patient care and in relation to being an advocate; that it was always done within work hours, that it was always to work emails, and that there had been no outside contact.

30.         Garda Cantwell further confirmed that the appellant had been co-operative with the Garda investigation. She had identified a lot of the emails the State were relying upon, and also correspondence she had sent to Dr Awan. She acknowledged acceptance both by the hospital and by the prosecution that the appellant's child had gone through a significant ordeal, and that the appellant had been under a huge amount of stress and strain, and concern, ultimately, for her child's care. She accepted that his health difficulties were an on-going issue.

31.         Garda Cantwell confirmed that the appellant had no previous convictions, was otherwise of good character, and that she was respected in her community. She indicated awareness of a testimonial provided to the appellant by a local authority councillor.

32.         Garda Cantwell confirmed that the appellant had been unrepresented for a time before the trial, including on the day that the jury had been empanelled. She confirmed that for some time prior to the appellant's change of plea, talks had been ongoing between the State's representatives and the appellant, and ultimately between the State's representatives and the appellant's newly retained legal team, leading to the trial coming to a conclusion without a jury being required to determine whether she be guilty or not guilty of the charge.

Other Relevant Procedural History

The trial

33.         On the 6^th of October 2022, the appellant's jury trial in respect of the single count on the indictment opened before the Dublin Circuit Criminal Court, presided over by Her Honour Judge Sheahan. The appellant had previously been arraigned on the 1^st of October 2022 and had pleaded not guilty, following which a jury had been selected for her trial.  It appears from the transcript of the 24^th of October 2022 that the 6^th of October 2022 was the third day that the case had been in the list for trial, albeit that it was first date on which the appellant had been in the charge of the jury for trial.

34.         The appellant was represented at trial by both counsel and a solicitor. Prior to the trial getting underway the matter had previously been listed before the Dublin Circuit Criminal Court on several occasions in regard to pre-trial issues, and these had been dealt with judges other than the trial judge, including His Honour Judge Nolan; The Honourable Ms. Justice Ryan, President of the Circuit Court; and Her Honour Judge Greally (as she then was). Although we do not have transcripts of what occurred on those earlier dates, we have been led to believe from the parties' respective submissions that on certain previous occasions the appellant was legally represented, but that in the immediate run up to the opening of her trial on the 6^th of October 2022 she was not legally represented and was representing herself. However, it is understood that she was given time to instruct a new legal team and that by the commencement of the trial before Her Honour Judge Sheahan and the jury on the 6^th of October 2022, she had again secured legal representation. It seems that there was a consciousness on the part of the trial judge that defence counsel had only been instructed at a late stage. There is a reference at one point in the transcript of proceedings on the 6^th of October 2022 to the trial judge addressing defence counsel and saying to him:

"Mr _____, I'm –I'm conscious that you have come into this late so if you do want time to converse with your client I've no difficulty with that, but there may be no need for that."  

35.         For completeness on the issue of representation, we should state that the appellant appeared before this Court on the 27^th of July 2023 as a self-represented appellant, and presented her appeal personally. No application was made to us for an adjournment or to be afforded an opportunity to instruct a professional legal team in connection with this appeal.

36.         Returning to the date of the 6^th of October 2022, when the case was called before Her Honour Judge Sheahan, and before the jury was put in charge, defence counsel advised the trial court that he would be seeking a voir dire in the course of the trial in regard to certain exhibits. It was flagged that there would be two facets to this. He was objecting to 54 exhibits (out of the prosecution list of 109 exhibits) on the basis that these were emails sent by the appellant to persons other than the person she had allegedly harassed, i.e., Dr Atif Awan, and his contention would be that they were not relevant. There would further be an objection that his client would be unable to receive a fair trial in a situation where she had been interviewed by gardaí in circumstances where, for some technical reason, the entirety of that interview had not been successfully captured by the electronic recording equipment. His contention was that as the only record of the interview that existed at that point was a written shorthand record which was not comprehensive, it would represent a fundamental unfairness in terms of the narrative that his client had put forward (and at that point wished to rely upon) to put that incomplete record before the jury, as the prosecution proposed to do.

37.         The trial judge then enquired as to whether rulings on these issues were required in advance of the case being opened to the jury, and she was advised that this was not required. The trial judge then indicated that the voir dire could be conducted after prosecuting counsel's opening speech, but before any evidence was led before the jury. At this point the jury were brought out. The judge made some introductory remarks to them, and then the accused was given in charge to the jury for trial. Prosecuting counsel then made her opening speech to the jury. At the conclusion of that speech the jury were sent away so that the legal issues that had been indicated by counsel could be canvassed in their absence.

38.          After the jury had departed, the two issues that had been indicated were ventilated before the court in more detail. Ultimately, the first issue (relating to emails addressed to persons other than the victim) was resolved by agreement. It is not necessary to set out what the terms of this agreement were, as it has no bearing on the appeal. In regard to the second issue (the proposal by the prosecution to seek to introduce the shorthand written record of the interview with the appellant, in which she was said to have made certain admissions), defence counsel asked for time to discuss the matter with prosecuting counsel, and the trial judge acceded to that request, indicating that the court would interrupt the trial to allow that to happen, that she would take up another matter while that was happening and would later resume the appellant's trial at 11.30am.

39.         When the court reconvened at 11:30am, defence counsel asked to have his client rearraigned. The appellant was rearraigned on the sole count on the indictment and pleaded guilty. The matter was then put back to 24^th of November 2022 for sentencing.

The sentencing hearing

40.         A sentencing hearing proceeded on the 24^th of November 2022 in the course of which, as is usual, the court below heard Garda evidence concerning the circumstances in which the offence was committed, and further concerning the appellant's personal circumstances. This was the evidence of Garda Cantwell outlined earlier in this judgment. Further, a victim impact statement by the injured party was read into the record. The defence did not go into evidence. Defence counsel then presented a plea in mitigation, following which the sentencing judge rose briefly to consider some documentation that had been handed into her, before sitting again to give her ruling on sentence.

41.         It is important to record that at no time during the proceedings on 24^th of November 2022 was there any intimation by, or on behalf of, the appellant, that she wished to change her plea of guilty to one of not guilty; or to suggest that she had only pleaded guilty under duress.

42.         We think it is important in the light of the case that the appellant has made to us, both in her written submissions and at the hearing of this appeal, to set out in some detail the nature of the plea in mitigation that was put forward on her behalf on the 24^th of November 2022.

43.         Defence counsel informed the court, inter alia, that his client was a 50-year-old woman, with two children then aged 20 and 23 years, respectively. He stated that the younger of these, a son, had had health difficulties from early in his life, culminating in him receiving a kidney transplant when he was 12 years old.  Her husband had donated his kidney to her son, and following the transplant there were a number of difficulties in relation to his health and the medication he was receiving.  It was stressed that the appellant was someone who took her child's care very seriously. He referenced a difficulty at a certain point in relation to the medication her son was receiving, and the fact that he became very unwell. It was put forward that Ms. Walsh felt that the communication from the doctors in the hospital was not helpful, and that she felt in the dark in relation to what was going on.  He suggested that it was on foot of this that she became interested in becoming an advocate in relation to patient care and for other families in similar situations.  He informed the sentencing court that she had attended a number of conferences, had sought out information in relation to how kidney transplants work, and had obtained a number of qualifications (the certificates for which were handed in as exhibits). Counsel stated that his client was also seeing a psychologist at the time, to help her with the stress of the situation. He stated that her instructions were that in 2017 and into 2018 she was under extreme stress in relation to her child's health, and he suggested that this stress was ongoing. 

44.         The sentencing court was advised that a week after the appellant had gone on trial, she underwent a test to see if she would be able to donate a kidney to her son also, as he was at that point in a position where he needed a second kidney.  The court below was advised that a kidney donation by the appellant (notwithstanding her willingness) was considered unlikely to work. His client had instructed him that she did everything she could to try and educate herself in relation to how kidney transplants work, and that it was on foot of these efforts that she had become extremely interested in being a patient advocate. He stated that that was why she was contacting the doctor and the hospital on an on-going basis; it was something that had started to take up the majority of her life, and she was actively trying to learn as much as she could about it. He stated that she was a woman who had never before come to adverse attention in relation to criminality. Nor had she since. He emphasised that she was someone who was of good character outside of this particular incident, and urged upon the sentencing court that appreciation of the background to his client's conduct was very important.

45.         Counsel stated that the appellant's frame of mind was that she was genuinely trying to help people; that she was genuinely trying to improve patient relations between people undergoing care within a hospital and complex operations, such as her son went through, and their families' interactions with the hospital and their understanding of it. He sought to impress upon the sentencing court that his client was attempting to do something that she believed would genuinely help other families and other mothers and fathers who were in a similar position to that which she and family were in.  He explained that his client had felt that she was in a unique position, by virtue of having gone through so much and for so long, to provide that information to other members of society, or to persons finding themselves in a similar position to her.

46.         Counsel acknowledged the hospital's position and that her ongoing contact had  become extremely difficult for the doctors to deal with. However, he emphasised, his client's contacts had always been in relation to her belief that she had something to give that other people could not give, and that she had felt that she had an obligation to society to put herself in a position where she could help people who might need her help.  He stressed that this was a genuinely held belief that she had, even to that day. It was urged upon the sentencing court by defence counsel that his client understood the situation that she was in, that she had entered a plea, and he asked to court below to accept that her concern was the genuine concern of someone who was in a very difficult position in relation to stress and her child's on-going care.  He sought to highlight to the court that it was always, from her point of view, an attempt to help patients' care, and to help other families in the situation that she was in. In response to a query posed by the sentencing judge, he further agreed that she was also first and foremost concerned with advocating for her son's needs, that everything that had occurred was borne out of the difficulty that had arisen in relation to his medication when he was recovering from his kidney transplant. 

47.         Counsel concluded by asking the Court to consider utilising s. 100 of the Criminal Justice Act 2006 in all the circumstances of the case.

Setting Aside A Guilty Plea - The Law

48.         It is long established that a trial judge has a discretion to permit an accused to change her plea from guilty to not guilty at any stage of the trial right up until sentence is passed - see Byrne v. Judge McDonnell [1997] 1 I.R. 392; The People (DPP) v. B [2002] 2 I.R. 246, and; Dunne v. McMahon [2007] 4. I.R. 471. While the primary consideration must always be ensuring that an accused's constitutional right to a fair trial is fully observed, the discretion is one to be exercised sparingly. The courts will be slow to allow a change of plea where there the evidence suggests that the accused understood the nature of the charges against her and entered her plea on an informed basis.

49.         An important consideration in this case was that there was, in fact, no request made to the trial judge at any time, whether on the trial date or during the sentencing hearing, that the appellant should be allowed to change her plea. Moreover, this was in circumstances where the appellant was legally represented; and where sentencing did not take place on the date on which the guilty plea was entered, but rather took place approximately six weeks later.

50.         Applications at appellate level to set aside a plea of guilty are relatively rare. Where they arise, it is usually in a situation where such an application was made to the trial judge and was refused. In that situation the appeal would be against the order at first instance refusing to allow the change of plea. The case of The People (DPP) v. Conor Judge [2018] IECA 242 provides a good example of just such a situation. However, the present attempt to set aside a plea of guilty at trial arises in the context of an appeal filed against conviction and sentence, in circumstances where there was no application before the sentencing judge at first instance to set aside the plea. While an appeal formulated in this way is very unusual, it is not totally unheard of. It was also the situation in The People (DPP) v. B, cited earlier. However, in such a situation, before an appellate court would be justified in interfering, it would need to be satisfied as to the existence of quite exceptional circumstances tending to suggest that the conviction based upon the plea was unsafe, and that, in the circumstances of the case, the appellant had been denied a trial in due course of law. In that regard, the onus of establishing the existence of quite exceptional circumstances will always rest on the appellant, and the case in that regard will require to be supported by very cogent evidence. Mere assertion of exceptional circumstances, unsupported by cogent evidence, will never be sufficient.

51.         It is not possible to exhaustively indicate the type of exceptional circumstances which, if supported by sufficiently cogent evidence, would justify an appellate court in exercising its discretion to set aside a guilty plea, but we believe that the case law to-date suggests that matters such as being unfit to plead at the time, pleading on an insufficiently informed basis (e.g., in circumstances of vulnerability and without having had the benefit of legal advice; or having received manifestly incorrect legal advice), or pleading under genuine duress, could (depending on the exact circumstances) potentially qualify.

52.         The status of a plea of guilty was helpfully considered by the Supreme Court in E.R v. Director of Public Prosecutions [2019] IESC 86. In the principal judgment, delivered by Charleton J. (O'Malley J. delivered a concurring judgment), he stated:

"34.      Both legally and ethically, counsel for an accused are not entitled to indicate a plea of guilty unless that plea is, as Hardiman J stated in The People (DPP) v Hughes [2012] IECCA 69, a statement that the accused committed the offence; see para 27. Pleading guilty means just that: the accused admits the offence. In our system that occurs both in the context of legal advice and within a matrix of facts as alleged by the prosecution in the book of evidence served well prior to trial. By pleading guilty the accused accepts responsibility for the facts and mental element relevant to the count on the indictment which he or she admits."

Charleton J. added:

"35.      [...] While Kearns J in The People (DPP) v Redmond [2006] 3 IR 188 at 217 stated that a judge 'should not intervene to set aside a guilty plea unless there are quite exceptional circumstances arising in the particular case', once a plea of guilty is entered, before it may be changed the accused bears the burden of demonstrating undue pressure. Given the discretionary nature of the trial judge's jurisdiction in allowing an accused to resile from a plea of guilty, overturning such a decision requires clear evidence that an impermissible degree of pressure was exerted over the accused; Dunne v McMahon [2007] 4 IR 471 at 479-80.

 

36.       Furthermore, what is required on an application to change a plea is complete evidence as to the circumstances allegedly bearing on an accused. The entry of a plea of guilty is not to be taken lightly. To enter a plea and then, as in this case, seek to change it a month later, completely disrupts the course of a criminal trial and undermines its unitary nature. Witnesses will be sent away, the victim may have some sense of closure, and the scarce time of the court which could have been used on completing the trial will be otherwise used up. A plea of guilty is a very serious matter. Changing a plea is at the discretion of the court and should involve hearing all the relevant evidence. Therefore, any solicitor or barrister representing and advising the accused should immediately withdraw once the accused seeks to go back on his or her formal admission of guilt. That leaves their evidence available to the accused who is not obliged to waive legal professional privilege but who thereby is given that option. The trial court will then have a proper view of the circumstances. That did not happen in this case and it should have.

 

37.       Hence, it is clear that an application of such moment, necessarily involving the accused claiming pressure or wrong advice, as opposed to pleading guilty in pursuit of a strategy of disruption which is itself contrary to good order and Article 38.1 of the Constitution, should involve at least the entitlement of an accused to waive legal professional privilege in favour of the presentation of the advice which the accused received."

53.         In her concurring judgment, O'Malley J. made the following further helpful observations concerning the role of counsel, in the context of a plea of guilty being intimated. She stated:

"3.        Our Constitution recognises a right to legal representation in the criminal trial. The right is of such high value that it carries with it the right to be provided with such representation free of charge if the accused person cannot afford it. Legal practitioners who accept instructions in a criminal trial thereby take on the vitally important role of not only putting forward the client's case as best they can, but of advising the client fully as to their position and options. They also take on the duty of attempting to protect the interests of the client against any proposed actions by the prosecution or rulings of the trial judge that are legally infirm, should such occur.

 

4.         The importance of appropriate legal advice in the context of an admission of guilt is stressed by the Code of Conduct for the Bar of Ireland. Paragraph 10.11 of the Code used to contain the following passage:

'So long as an accused maintains his or her innocence a barrister's duty lies in advising the accused on the law appropriate to his or her case and the conduct thereof. Barristers shall not put pressure on the accused to tender a plea of guilty whether to a restricted charge or not, so long as the accused maintains their innocence. Barristers should always consider very carefully whether it is proper, in the interests of justice, to accept instructions to enter a plea of guilty. They should ensure that the accused is fully aware of all of the consequences of such a plea and they should insist that the instructions to plead guilty are recorded by their instructing solicitor in writing and in their presence. Where the accused is pleading guilty barristers should not accept instructions to tender a plea in mitigation on a basis inconsistent with the plea of guilty.'

 

 5.        This rule was expanded in July 2016. What is now Rule 10.12 reads:

'The accused should be explicitly advised that the decision on whether to enter a plea of guilty is exclusively a matter for him. So long as an accused maintains his or her innocence a Barrister's duty lies in advising the accused on the law appropriate to his or her case and the conduct thereof. Barristers shall not put pressure on the accused to tender a plea of guilty whether to a restricted charge or not. However, it is not improper clearly to advise an accused as to the strength of a prosecution case and likely outcome where appropriate. Where an accused wishes to enter a plea of guilty a Barrister should ensure that the accused is fully aware of all of the consequences of such a plea and they should advise that the instructions to plead guilty are recorded by their instructing solicitor in writing and in the presence of the accused. Where an accused tells a Barrister that he did not commit the offence with which he is charged but nonetheless wishes to plead guilty it is not improper to continue to act. The consequences of such a course should be explained and it should be further explained that what can be submitted in mitigation can only be on the basis that he is guilty if such a plea is entered. In those circumstances a Barrister shall advise his instructing solicitor to record those instructions in writing and the accused should be invited to endorse those instructions with his signature. Where the accused is pleading guilty Barristers should not accept instructions to tender a plea in mitigation on a basis inconsistent with the plea of guilty.'

 

6.         The Code does not deal expressly with the problems that can arise in relation to a change of plea. However, it is perfectly clear that counsel must in all cases advise carefully on the consequences of a plea of guilty, whether the client is privately admitting guilt of the offence charged or not. [...]"

The First and Third Grounds of Appeal - Alleged Ineffective Assistance of Counsel / Duress.

54.         By letter dated the 3^rd of May 2023, the respondent asked the appellant for further details of the ineffective assistance/duress alleged in her submissions entitled "Accuracy of representation / Appeal". The only reference in that document to the plea of guilty entered by her is at the very bottom of page 7, where she states:

"My guilty plea was made under much duress, as explained in the email attached to An Garda Siochana (ref no:4)"

55.         The email in question which, as indicated, was attached to the appellants' submissions document entitled  "Accuracy of representation / Appeal", and marked "reference 4" in manuscript, was sent on Tuesday the 6^th of December 2022 at 9.00pm and was sent to the email address for Mountjoy Garda station and marked for the attention of Garda Eimear Cantwell and Inspector Emer Curran.  It was in the following terms:

"Dear Garda/Inspector,

I contact you both to inform you of my intention to appeal this court sentence/conviction.

 

To be clear I do not have legal representation, in court many times I have been exasperated and distressed at how this matter has been represented or put more accurately misrepresented.

 

The guilty plea was made because my son is presently at home sick on dialysis twice weekly, I have spent a week in Dublin back and forth to the court, counsel did not represent the urgency or need accurately in my opinion. The paramount consideration of children first (he is still my child) was again my priority and at that time I made a decision to make a guilty plea in the belief that the process will be expedited and I could get home to my family, hoping that the section 100 would bring a fair outcome at the next court date. I had to attend Beaumont hospital for a Live Related Donor assessment the following Tuesday this was of utmost importance.

 

A submission to the DPP will be posted tomorrow 7/12/2022. It is my understanding that during this process we will be liaising. Please contact me if you need further information or cooperation regarding this matter.

 

Regards,

Marlies Walsh

[Mobile phone number also provided]"

56.         In a reply to the respondent's correspondence dated the 4^th of May 2023, the appellant confirmed she was relying only on her submissions document (including, it is inferred, the attached email just quoted and referenced therein), but did offer the following elaboration:

"Elaboration of pleas - misrepresentation/ ineffective counsel- as this case has not been represented as a mother advocating for her son and volunteering to help others it is in my opinion ineffective, this in itself causes duress".

And that:

"The condition of my son who I love and care for was deteriorating rapidly, the court process was repetitive and protracted in my opinion. I needed to go home to care for [son's name]. He is now on dialysis three times per week."

57.          The respondent makes the following points. First, if the condition of the appellant's son was so deteriorating, this was not brought to the attention of the court below. Secondly, it was, in fact, put to the prosecuting Garda during the sentence hearing that the appellant's son was awaiting another transplant; and it was advanced in the plea in mitigation that the appellant had undergone testing to see if she herself could be a kidney donor for her son, and that this had taken place approximately one week after the trial. Her counsel had further sought to impress on the sentencing judge that the appellant was under immense stress with respect to the treatment of her son, and that she had been under that stress for some twenty years.

58.         It was submitted that the circumstances so described would not amount to duress such as would undermine the appellant's plea of guilty.

59.         We agree with that submission. While we have no doubt that this must have been an extremely stressful time for the appellant, there is no suggestion that she entered her plea of guilty on an uninformed basis. Moreover, beyond merely asserting duress in her submissions, the appellant has not offered any cogent evidence that her will was so overborne by the undoubted stress that she was under that she was in truth coerced into pleading and that her plea was not a voluntary one. She has not deposed to her assertion on oath. She has not submitted any affidavit upon which  she could be cross-examined. She has provided no third-party evidence, such as medical evidence, tending to provide support for her assertion. It is not suggested that a third-party, such as her solicitor or counsel, or anyone else, exerted undue pressure on her or sought to coerce her to plead guilty. Rather, such limited information as she has provided concerning the basis of her complaint suggests that, notwithstanding that she was highly stressed, she fully understood what she was doing, in circumstances where she was legally represented and had been advised as to her options, and that she opted to plead guilty for strategic reasons, amongst which may well have been a desire to expedite the proceedings being brought to an earlier conclusion than would be the case if the matter had proceeded on the basis of continuing to maintain her earlier plea of not guilty, so that she could get home to her family. If, as we believe, that was indeed her motivation, then that is not duress in the legal sense such as might justify the setting aside of her plea of guilty. On the contrary, it was a strategic decision made in circumstances where she was being professionally advised, and where it is not suggested that she was wrongly advised. Indeed, it is clear from the reference in her email of the 6^th of December 2022 to "hoping that the section 100 would bring a fair outcome at the next court date", that she was fully aware on the 6^th of October 2022 that counsel's intended strategy, in the event of her pleading guilty, was to make a case to the sentencing judge to deal with the matter non-custodially by applying s. 100 of the Criminal Justice Act 2006. Although it is, by the way, as it transpired, the sentencing judge, while disinclined to utilise s. 100 as the mechanism for doing so, did in fact ultimately deal with the matter non-custodially. The critical point, however, is that all the circumstances point to the appellant's decision to plead guilty having been a strategic one that was made on an informed basis, and not one that was coerced from her or made under duress.

60.         Insofar as the appellant relies on ineffective assistance of counsel, the complaint seems to come down to this: that as stated in her email of the 6^th of December 2022, "[t]he guilty plea was made because my son is presently at home sick on dialysis twice weekly, I have spent a week in Dublin back and forth to the court, counsel did not represent the urgency or need accurately in my opinion".

61.         The appellant, to succeed in having her conviction set aside on the basis of ineffective assistance of counsel (in this instance, a conviction based upon her own plea of guilty), would have to be in a position to demonstrate that there had been such a disregard of her interests by counsel in how he/she had represented the appellant in the context in which she had come to plead guilty, that it could not be said that she had received a trial in due course of law as is required by Article 38.1 of the Constitution, or in other words a fair trial - The People (DPP) v. Farrell [2018] IECA 213; The People (DPP) v. McDonagh [2001] 3 I.R. 411, and; The People (DPP) v. Shaughnessy [2021] 3 I.R. 444. That has not been demonstrated in our judgment.

62.          There is no complaint, much less any evidence, that counsel was instructed to, but failed, to apply for an adjournment of the trial due to an urgent need for her to be elsewhere due to the acuteness of her son's condition. There is no complaint made by her, or evidence to the effect, that her counsel, albeit that he came late into the case, had not had time to familiarise himself with it, or that he had not done so. As highlighted earlier in this judgment, the trial judge had, in fact, made plain that if her counsel required time to take instructions, she would be prepared to give it. Further, no complaint is made, nor evidence adduced, about lack of opportunity on her part to give instructions, or about specific instructions being given and not being followed. There is equally no complaint made, nor evidence adduced, concerning any advice that she received from counsel, or suggestion that she did not understand the advice she was given or what she was doing in changing her plea.

63.         One interpretation of the appellant's complaint is that she has developed post-transactional regret for having pleaded, and is critical ex post facto of how the plea in mitigation was presented, and disappointed with how the court below dealt with her at sentencing. Even if that were true, and even if she had a basis for being dissatisfied with how the sentencing stage of the proceedings had unfolded, these were all events that occurred after the entry of her plea of guilty on the 6^th of October 2022, and none of it can be relied upon for the purpose of undermining her plea. For what it is worth, we have considered in detail the evidence that was subsequently adduced from Garda Cantwell at the sentencing hearing, including her counsel's cross examination of that witness, and the plea in mitigation that was subsequently made. We are satisfied that the appellant's counsel did elicit, and subsequently and in explicit terms sought to impress on the sentencing judge, that the appellant was acting at all stages out of concern for her child, was acting under stress, and that she had been motivated by a genuine desire to help other families, other patients, and other parents who were in a similar position to that which she and family were in. It appears to have been a carefully calibrated, and well presented, plea in mitigation. Moreover, we again feel the need to point out that this sentencing hearing was six weeks after the appellant had pleaded guilty. She did not discharge her solicitor and counsel either in advance of the sentencing hearing, or at that hearing, and or seek to intervene at any stage to suggest that her instructions were not being followed, or that a plea had been coerced from her. There were, as counsel for the respondent has pointed out in her submissions, numerous opportunities for the appellant to express concerns. She had discharged her legal team on three previous occasions. The transcript, in fact, records that when, following the ruling on sentence, the appellant was required to enter into the bond associated with the imposition of a suspended sentence, the appellant, far from suggesting that she was the victim of an injustice arising from a coerced plea, and ineffectual representation, expressed her thanks to the sentencing judge. When the terms of the bond were then read out to her, she was further asked "Do you acknowledge yourself so bound?", and she replied, "I do".

64.         In all the circumstances outlined, and in particular in the absence of the presentation of cogent evidence supporting the appellant's assertions, we are not persuaded that it is appropriate for us to intervene to set aside the appellant's plea of guilty on the grounds either of duress or of ineffective assistance of counsel.

The Second Ground of Appeal - Quality of Investigation.

65.          We dismiss this ground of appeal in limine. We understand it to arise out of the appellant's concern about the fact that there is no extant electronic recording of her interview with An Garda Síochána. While counsel for the respondent does not dispute that fact, she rightly points out that this was an issue for the trial. The appellant was aware of the difficulty before she pleaded because her counsel indicated at the commencement of the proceedings on the 6^th of October 2022 that he would be seeking a voir dire in regard to the prosecution's proposal to seek to rely on an incomplete written shorthand note of the interview. The appellant chose to plead guilty to the charge and matters pertaining to evidence that might have been adduced, had the trial proceeded, are irrelevant at this stage.

Conclusion

66.         There are no grounds to be concerned about the safety of the appellant's conviction (following her plea of guilty), or on which to justifiably intervene to set aside the conviction.

67.         On the evidence before us we are satisfied that her rights under Article 38.1 of the Constitution were respected in the circumstances in which she came to plead guilty.

68.         The appeal must be dismissed.