O’R -v- DPP
Neutral Citation: (2011) IEHC 368
High Court
Judgment was delivered on October 7th, 2011, by Mr Justice Peter Charleton
Judgment
In a case where a young man accused of sexual assault claimed he could not get a fair trial because of alleged “coaching” of the complainant by a therapist, the court refused to stop the trial as the “acting out” of roles during the therapy was not directive towards a particular result, or distorting the evidence.
Background
In August 2007 the applicant had a party in his apartment in a student residence, attended by, among others, the complainant. She drank some beer and at about midnight declined an offer of a lift home, deciding to get a taxi instead. She went into the applicant’s room to get her mobile phone to ring a taxi. There were conflicting accounts of what happened next.
When arrested, the applicant said he had been socialising and chatting with the complainant and they ended up touching each other on his bed. He said she removed her jeans to facilitate the touching. He said she then did not seem interested and turned away from him.
The complainant agreed they had been chatting in his room when she went to get her phone. She said she fell asleep and when she awoke the duvet was over her, she was on her back, her jeans had been removed and the applicant was touching her intimately. She found her jeans thrown on a chair.
Following her making a complaint there was some delay, and the trial was set for February 2010. It emerged on the first day that the complainant had attended counselling sessions for trauma in 2009, and the defence sought the records of the counselling. The applicant claimed that during the counselling, the psychotherapist took the role of a defence counsel in role play with the client in order to prepare her for the trial. The notes of the counselling sessions were examined.
They showed the complainant reported feelings of fear and anger arising from the incident, and particular feelings of fear concerning the impending trial, where she feared she would not be believed and the applicant would get off.
The therapist said in a formal statement to gardaí that there were considerable pressures on the complainant arising from the delay in the matter coming to trial, and she sought to address this with strategies for anxiety management, including live exposure, with the person envisaging the feared situation.
A “role play” model was used in which she was asked to confront her feelings in court and consider how she would cope if certain things occurred.
Mr Justice Charleton considered the reasons for stopping a trial and said the availability of the jurisdiction of the trial judge to stop a trial constituted an adequate alternative remedy. This should be considered as a discretionary ground for refusing judicial review.
However, the issue raised in this case, concerning alleged witness-coaching, raised a completely novel point, and judicial review would therefore be an appropriate remedy.
He examined at length the question of witness rehearsal, concluding that it was not wrong to direct witnesses, especially expert witnesses, as to the issues in question in a case and the manner in which their view may be appropriately presented in order to avoid rambling side references.
However, the suggestion to a witness as to the appropriate form or content of evidence would completely undermine the search for truth with which a trial should be concerned.
Just because a person was the victim of a crime should not mean they should be shut out from seeking therapy. Such therapy is independent of the trial process.
He added: “It is appropriate to warn that the addition to psychotherapy or counselling of any acting out of the trial process in the therapeutic setting may blur lines which, for the benefit of the alleged victim and the administration of justice, should be kept separate. It is undesirable.”
This did not preclude pre-trial arrangements to familiarise witnesses with the court, who played what role in a trial, and the likely sequence of events. “What characterises an appropriate approach to trial preparation is its non-directive nature,” he said.
Decision
Having read the statements in the case in detail, he concluded that while the acting out of the roles of defence counsel and witness was undesirable, it was not directive towards any particular result and could not be regarded as distorting the evidence.
He pointed out that in an English case where there had been an arguably more influential intervention with witnesses, the resulting conviction was still regarded as safe and satisfactory.
The trial judge might, during the trial in this case, wish to address specifically any issue raised by the defence about the therapeutic intervention and its effect on the soundness of the account given by complainant. He could do so by direction to the jury.
Mr Justice Charleton added that, as this was a novel point of law, the usual costs order, where costs follow the event, might not be appropriate, and he heard submissions on costs.
The full judgment is on courts.ie
Anthony Sammon SC and Mark Nicholas BL, instructed by John Herbert Co, Limerick, for the applicant; Eilish Brennan BL, instructed by the chief prosecution solicitor, for the Director of Public Prosecutions