High Court quashes DPP order for video evidence in sexual offence trial due to unfair trial risk.

Neutral Citation Number: [2009] IEHC 559

THE HIGH COURT

2009 232 JR

D.O’D.

Applicant

And

Director of Public Prosecutions

And

Judge Patricia Ryan

Respondents

JUDGMENT of O’Neill J. delivered the 17th day of December 2009.

1. The Reliefs

1.1 Leave was granted by this Court (Peart J.) to the applicant on the 2nd of March 2009 to seek the following reliefs by

way of judicial review proceedings:-

1. An order of certiorari quashing the order of the second named respondent dated the 20th February, 2009,

directing the use of video link facilities pursuant to s.13 of the Criminal Evidence Act 1992.

2. An injunction as against the first named respondent restraining the further prosecution of the applicant in respect

of bill no. DU179/07 currently pending before the Dublin Circuit Criminal Court by the presentation of the complainant

evidence via live video link.

2. The Facts

2.1 The applicant is currently the subject of proceedings before the Dublin Circuit Criminal Court. Those proceedings

concern allegations made by two complainants, who are cousins of the applicant, in respect of five offences alleged to

have been committed by him contrary to s.5 of the Criminal Justice (Sexual Offences) Act 1993 (“the Act of 1993). That

section provides for the offence of having sexual intercourse with mentally impaired persons. The meaning of the term

mentally impaired is defined in s. 5(5) of the Act of 1993 as “suffering from a disorder of the mind, whether through

mental handicap or mental illness, which is of such a nature or degree as to render a person incapable of living an

independent life or of guarding against serious exploitation.”

2.2 Four of the alleged offences relate to the complainant A.O’D., who is now 42 years old, and are alleged to have been

committed at the home of the applicant in a suburb of Dublin in 2002/2003. The remaining alleged offence relates to

A.O’D.’s sister, V.O’D., who is now 46 years old, and that offence is alleged to have been committed in Cork in 2002. As

part of his defence to the charges, the applicant, at trial, intends to contest that the complainants suffer from a mental

impairment.

2.3 On the 20th February, 2009, the second named respondent made an order on foot of an application of the first named

respondent, directing that the complainants be permitted to give their evidence by way of a live video link, pursuant to

s.13 of the Criminal Evidence Act 1992 (“the Act of 1992”). The prosecution applied for evidence to be given in this way

under s. 13(1)(b) of the Act of 1992. Section 13(1) of the Act of 1992 states as follows:-

“13.—(1) In any proceedings for an offence to which this Part applies [including sexual offences] a person other

than the accused may give evidence, whether from within or outside the State, through a live television link—

(a) if the person is under 17 years of age, unless the court sees good reason to the contrary,

(b) in any other case, with the leave of the court.”

Had the application been made under s. 13(1)(a) of the Act of 1992, it would have involved a finding that both of the

complainants suffered from a mental handicap, as s.19 of the Act of 1992 states, inter alia, that the reference in s.13(1)

(a) to a person under 17 years of age “shall include references to a person with mental handicap who has reached the

age concerned.” In order to avoid pre-judgment of the issue of whether the complainants suffered from a mental

impairment, the first named respondent in the instant proceedings, avers that the application was brought under s.13(1)

(b) of the Act of 1992.

2.4 At the hearing in the Circuit Court the learned second named respondent, as revealed in the transcript, referred to

the fact that she had heard a previous application in the same case. Ms. Gearty B.L., for the prosecution, submitted that

the case was one where the Court had ample reason to exercise its discretion in favour of her application, based on the

contents of reports of Mr. John Buttimer, Clinical psychologist, in respect of A.O’D. and V.O’D., and the two reports of Ms.

Mary Desmond, Psychologist, in respect of V.O’D., together with the nature of the case and the relationship between the

persons involved. The said reports were handed into the Court. Reports in the form of a statement given by way of

additional evidence, of Mr. Buttimer dealing with A.O’D and of Ms. Desmond dealing with V.O’D., touch on the subject of

the complainants’ ability to give evidence and are in identical terms and are the only material put before the learned

second named respondent which expressly considers the ability of either complainant to give evidence. These statements

are in the following terms:-

“Further to my psychological report on A.O’D., dated June, 2004, I would like to reiterate that on the basis of that

psychometric assessment of intellectual ability, A’s level of intellectual disability fell within the low mild range (low

mild mental handicap).

Individuals who fall within this range of disability present with significantly lower levels of intellectual ability and

adaptive/functional life skills than the typical person. A’s level of disability would suggest that she would have

difficulty living independently and in guarding against and protecting herself against serious exploitation.

A’s level of disability and her special needs would be apparent to individuals following even a brief social interaction

with A.

With respect to A’s ability to give testimony in a court case, it would be advantageous were she permitted to give

testimony by means of video-link.”

2.5 Mr. Farrell B.L., for the applicant, objected to the prosecution’s application on the grounds that it would create an

inference that the complainants were vulnerable persons and persons who suffered from a mental impairment, if permitted

to give evidence by way of video link. In essence, he argued that the issue of their mental impairment would be pre-

determined and would impinge on his client’s right to a fair trial. He submitted that the reports handed in suggested merely

that it would be preferable if the witnesses gave their evidence via a video link and that this did not go far enough. The

second named respondent recalled details of the complainants’ circumstances and then a transcript of the evidence from

the hearing of the 22nd November, 2007, was handed in.

2.6 At that previous hearing an issue arose as to where a psychiatric assessment on the complainants by a consultant

psychiatrist, Professor Patricia Casey, engaged for the defence, should take place. Ms. Gearty B.L. proposed that the

psychiatrist should travel to the town where the two complainants resided, as opposed to them traveling to Dublin to her

office. The prosecution called Ms. Judy Moynihan of the COPE Foundation, who had been A.O’D.’s social worker for the

past 19 years and who had been V.O’D.’s social worker for the past 8 years to give evidence. The following passage from

the transcript of the evidence of Ms. Moynihan sets out the basis for her concerns for A.O’D. if required to travel to

Dublin for the assessment:-

“Q. [Ms. Gearty B.L.]… You heard the suggestion that they [the complainants] travel to Dublin to be psychiatrically

assessed. Can you comment on that for the assistance of the Court at all?

A. [Ms. Moynihan] Well, I believe that is really a huge ask of anybody to do that to them because the trauma they

experienced through the alleged incidents has been huge. It is something that is never far from their minds. They

associate Dublin with that, and when I say ‘they’ I really should be speaking for A [O’D.].

Q. I think you should, in fairness to the defence, and obviously the point that Mr Farrell has made I will confine

myself to that, yes. Thank you.

A. I apologise. A [O’D.] is hugely taken up by the events that have happened in Dublin. I have a number of reasons

that I think that they should not travel. I think that they are alleged victims and this would exasperate the feeling

of victimising them again by bringing them up to Dublin for such a proposed assessment. I think the picture that

I’ve briefly painted of them and the supports that they offer the family; that is a huge role in their lives, daily

lives, in her daily life and if A [O’D.] were to be removed from that or if she was not there until 10 or half past

everyday and back again at three or half past everyday she could not comprehend who would fill the gap for her,

who would do those jobs.”

Ms. Moynihan also gave evidence that A.O’D. was the main carer for her elderly dependent parents. Under cross-

examination by Mr. Farrell B.L., Ms. Moynihan alluded to the trauma the complainants would suffer from undergoing the

assessment. Professor Casey then gave evidence as to what the assessment would entail.

2.7 In her ruling the second named respondent had regard to the following matters: the likely disruption to the family

commitments of A.O’D.; the trauma A.O’D. would encounter due to the break in her routine; the fact that V.O’D. would

not be paid for the day of work that she would miss and that she would have to provide an explanation to her employer

and her friends for her absence and that the complainants were persons with intellectual disabilities. Having taken these

matters into account the learned Judge refused the application to have the assessment carried out in Dublin.

2.8 In her ruling on the application under s. 13(1)(b) of the Act of 1992 the learned second named respondent stated

that her first concern was the right of the accused to get a fair trial but that she also had to take into account “the

nature of this case, the relationship between the parties and the reports and the evidence given on the last occasion.”

She held that “given the particular circumstances of this case, the particular nature of the case, the relationship

between both A.O.D. and V.O.D. and the accused man” that it was an appropriate matter for the Court to exercise its

discretion and she directed that the evidence should be given by video link.

3. The Issue

3.1 The issue that arises for determination in these proceedings is whether or not the giving of evidence by video link by

the two complainants would create a real risk that the accused would not get a fair trial because the giving of evidence

by the complainants by way of live video could or would convey to the jury that the complainants were persons with

mental impairment, a matter which the applicant disputes as part of his defence.

4. Counsels’ Submissions

4.1 Mr. Ó Braonáin S.C., for the applicant, submitted that the order of the first named respondent permitting the

complainants’ evidence to be given by video link would prejudice the jury in their deliberations on whether the

complainants are mentally impaired persons for the purposes of s.5 of the Act of 1993. In his submission the evidence put

forward to the first named respondent on the hearing of the application under the Act of 1992 did not reach the required

threshold so as to displace the right of the accused to a fair trial. In this regard Mr. Ó Braonáin contrasted s.13(1)(a) of

the Act of 1992, which, he submitted, created a presumption that a person could give evidence by way of video link

unless the Court could find a reason to the contrary, with s.13(1)(b) which, he submitted, provided for a threshold that a

person had to meet in order for the normal rules to be displaced, notwithstanding the right to a fair trial. He argued that

the evidence adduced by the first named respondent, though it established advantage to the complainants in giving their

evidence via video link, did not amount to a basis for granting the order.

4.2 The message to the jury at the trial, he submitted, would be that the complainants had to be protected and this

created a fundamental disadvantage for the applicant. He contended that inadequate weight had been attached by the

second named respondent to his client’s right to a fair trial and that the impact upon it had not been assessed by her.

The appropriate test under s. 13(1)(b) of the Act of 1992, he submitted, was that there would have to be evidence of an

inability on the part of a witness to give evidence or a very real or significant impairment of the capacity of that witness

to give evidence.

4.3 Mr. McDermott B.L., for the first named respondent, submitted that the application was made in the Circuit Criminal

Court under the second limb of s.13 of the Act of 1992 precisely to avoid establishing that the complainants suffered from

a mental impairment and to avoid a suggestion of predetermination. He suggested that the jury could be given a direction

that nothing was to be taken from the fact of persons giving evidence via a video link and that a properly charged jury

would only have regard to the evidence. He submitted, in addition, that a jury may not be aware that there was anything

unusual about evidence being given by way of video link and that the criterion of handicap or impairment was not the only

basis upon which an order could be made under s.13 (1)(b) of the Act of 1992.

4.4 In his submission the second named respondent considered a combination of factors and balanced them which led to

her conclusion that the complainants should give their evidence by video link and that the evidence before her amounted

to an adequate basis for the making of the order. Even if an error had been made by the second named respondent, he

contended that it would have been one made within jurisdiction and would not, as such, be amenable to challenge by way

of judicial review. He noted that the legislature had not set down an actual test in s.13 of the Act of 1992 and that the

first named respondent properly undertook a balancing exercise. He submitted that if evidence could not be given by

video link that the whole purpose of the section would be defeated and the clear intention of the Oireachtas would be

frustrated.

5. Decision

5.1 The application under s.13 of the Act of 1992 was objected to on the basis of the right of the accused to a fair trial

i.e. if evidence was given by the complainants by way of video link that it would ipso facto involve an intimation to the

jury that the complainants suffered from some element of mental impairment or that it would tend to sway the jury to

that conclusion. The potential problem that arises is one of perception, in that, it might appear to the jury that, the

complainants, who are women in the forties, are being allowed to give their evidence by video link rather than in the usual

way simply because of mental impairment.

5.2 The first named respondent submits that the giving of evidence by the complainants by video could be explained to

the jury by the prosecution in such a way as to convey to them that the use of the live video link did not involve or was

not any determination on the question of the their mental competence. Also, it was submitted that a direction could be

given by the trial judge to the jury to the effect that the issue of the complainants’ mental impairment or otherwise was a

matter for them to determine and to exclude from their minds any suggestion that the giving evidence by video link implied

that the witnesses suffered from mental impairment.

5.3 I am satisfied that this would be an unsatisfactory approach for the simple reason that it would be, partially at least,

untrue, given that the main reason for the use of the video link is because the prosecution satisfied the learned second

named respondent, inter alia, that they do suffer from mental impairment. Perhaps another approach that could be

adopted is for the trial judge to give an explanation to the jury of the statutory provisions regarding video link evidence

and to direct them to ignore the method of giving evidence and to determine the issue of mental capacity purely on the

evidence they hear. But, this too would not be a satisfactory direction as it could not remove from the minds of the jury

the fact that the basis of the complainants giving their evidence by video link was an implicit interlocutory finding of

mental impairment. The fact that the application for the video link was made under s.13(1)(b) rather than s.13(1)(a), if

explained to the jury, could not, in my opinion, convey to the jury with the necessary degree of conviction, the fact that

the selection of the video link did not suggest or imply mental impairment affecting the complainants.

5.4 In my judgment, it is clear that evidence by video link in the circumstances of this case does carry with it a real risk

of unfairness to the accused person which probably cannot be remedied by directions from the trial judge or statements

from the prosecution.

5.5 Manifestly, s.13 of the Act of 1992 provides for the giving evidence by video link for offences such as the ones the

applicant is charged with. The discretion which the Court has under s.13(1)(b) to order evidence to be given in this way

or to direct otherwise raises the difficult question as to how the Court is to achieve a correct balance between the

accused’s right to a fair trial and the prosecution’s right in an appropriate case to have evidence given by video link. It is

clear that what is required is a test that achieves the correct balance between these two competing rights.

5.6 Where the Court reaches the conclusion that the giving of evidence in this way carries with it a serious risk of

unfairness to the accused which could not be corrected by an appropriate statement from the prosecution or direction

from the trial judge, it should only permit the giving of evidence by video link where it was satisfied by evidence that a

serious injustice would be done, in the sense of a significant impairment to the prosecution’s case if evidence had to be

given in the normal way, viva voce, thus necessitating evidence by video link in order to vindicate the right of the public

to prosecute offences of this kind. The fact that the giving of evidence viva voce would be very unpleasant for the

witness or coming to court to give evidence very inconvenient, would not be relevant factors. In all cases of this nature

the giving of evidence by the alleged victim will be very unpleasant and having to come to Court is invariably difficult and

inconvenient for most persons. Most witnesses have vital commitments which have to be adjusted to allow them to come

to Court. The real question is whether the circumstances of the witness are such that the requirement to give evidence

viva voce is an insuperable obstacle to giving evidence in a manner that does justice to the prosecution case. The

evidence must establish to the satisfaction of the Court hearing the application under s.13 of the Act of 1992 that the

probability is that the witness in question will be deterred from giving evidence at all or will, in all probability, be unable to

do justice to their evidence if required to give it viva voce in the ordinary way, This is necessarily a high threshold, but I

am satisfied that in order to strike a fair balance between the right of the accused person to a fair trial and the right of

the public to prosecute offences of this kind, it must be so.

5.7 I am satisfied than the learned second named respondent did not apply the correct test as set out above, to

achieving the correct balance in this case between the right of the applicant to a fair trial and the right of the first named

respondent to prosecute the offences in question on behalf of the public. In my judgement she had regard to and

attached considerable weight to factors such as the relationship between the applicant and the complainants, the reports

on mental assessment of the complainants, domestic and vocational awkwardness and inconvenience, and the

unpleasantness of the experience of giving evidence as factors which, in themselves, warranted the making of the order.

Whilst these factors were directly relevant to the decision made in the earlier application on the location of the

psychiatric assessment to be carried for the applicant, in the application under s.13 of the Act of 1992 these factors

would only be relevant if they amounted to or supported evidence which established that the witnesses in question would

not be capable of giving their evidence viva voce or would not be capable of doing justice to their evidence in that

setting. That core question does not appear to have been expressly addressed, save in a very limited way, as set above,

in the last paragraphs in the reports or statements of Mr. Buttimer and Ms. Desmond. As is apparent, their conclusion was

merely that the giving of evidence by video link would be “advantageous” and no more. There is no real exploration or

consideration of the ability of either complainant to give evidence viva voce. Such a consideration or conclusion, quite

simply, fails to meet the requirements of the test as set out above.

6. Conclusion

6.1 For these reasons I am of the opinion that the impugned order made by the learned second named respondent places

the applicant at risk of an unfair trial and, accordingly, I will grant an order of certiorari to quash it. It is appropriate that

the matter be remitted to the Circuit Court for a rehearing of the application under s.13 of the Act of 1992.