O’D -v- DPP Anor
High Court
Judgment was given by Mr Justice O’Neill on December 17th, 2009
Judgment
An order that two alleged victims of sexual offences should give their evidence via video-link was quashed, and the matter sent to the Circuit Criminal Court for rehearing
Background
The applicant was charged before Dublin Circuit Criminal Court with five offences concerning two women – the applicant’s cousins, who are in their 40s – that he had sexual intercourse with mentally impaired persons, contrary to the Criminal Justice (Sexual Offences) Act 1993. This makes it an offence to have sexual intercourse with a mentally impaired person.
Four of the alleged offences were alleged to have been committed against one woman in the home of the applicant in Dublin in 2002-2003. The other alleged offence was alleged to have been committed against her sister in Cork in 2002. As part of his defence, the accused man intended to contest that they were mentally impaired.
The Circuit Court judge before whom the case began, Judge Patricia Ryan, made an order that the complainants be permitted to give their evidence via video-link. This had been sought by the DPP under Section 13 (1) (b) of the 1992 Criminal Evidence Act, which provides for video-link evidence from persons under 17, or “in any other case, with the leave of the court”.
There is a provision under Section 13 (1) (a) of the Act to provide for people with a mental disability to give evidence via video-link, but this section was not invoked by the DPP.
Counsel for the DPP argued the court had ample reason to give leave for the video evidence, referring to reports from two clinical psychologists. The reports were in identical terms, and referred to an intellectual disability within “the low mild range”, which meant “significantly lower levels of intellectual ability and adaptive/functional life skills”. This suggested that the person concerned would have difficulty living independently and in protecting herself against serious exploitation. The report stated that it would be “advantageous” if the person was permitted to give testimony by way of video-link.
Counsel for the applicant objected to the DPP’s application for video-link evidence on the grounds that it would create an inference that the complainants were vulnerable persons and suffered from a mental impairment, thus pre-determining the issue of mental impairment. The defence was arguing that the complainants were not mentally impaired under the Act.
At the previous hearing, an issue had also arisen about the complainants being assessed by a psychiatrist on behalf of the defence. The issue of them travelling to Dublin for the assessment had been raised. A representative of the Cope foundation, who had been a social worker with one of them for 19 years and the other for eight, gave evidence stating that travelling to Dublin would be very difficult for one of the accused because the alleged assault had taken place in Dublin.
This woman was the main carer for their elderly dependent parents, and her routine would be disrupted by travelling. Her sister worked with people with mental disabilities and would have to take the day off to travel to Dublin, which she would find hard to explain.
The judge refused the application to have the assessment carried out in Dublin.
She also granted the application to have the evidence given via video-link. She said while her first concern was that the accused should get a fair trial, she had to take into account the nature of the case, the relationship between the parties and the reports given.
Mr Justice O’Neill said the issue to be determined was whether giving the evidence via video-link would create a real risk that the accused would not receive a fair trial, by conveying to the jury the impression that the complainants were persons with mental impairment, which the accused was disputing.
Counsel for the applicant submitted that the evidence put forward by the DPP did not reach the required threshold under the 1992 Act to displace the accused person’s right to a fair trial. The evidence merely stated that it would be advantageous to the complainants to give their evidence via video-link.
Counsel for the DPP said the application was made under the second limb of the 1992 Act in order to avoid establishing that the complainants suffered from a mental impairment. He said a direction could be given to the jury that nothing could be taken from the fact that the evidence was by video-link.
Decision
Mr Justice O’Neill said the potential problem was one of perception – that the complainants were being allowed give their evidence via video-link because of mental impairment.
He said he was satisfied that having the trial judge direct the jury that the manner of giving evidence had nothing to do with whether or not they suffered from a mental impairment was unsatisfactory, for the simple matter that it was at least partially untrue. He also said that asking them to ignore the method of giving evidence was unsatisfactory.
“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,” he said.
What was required was a test that achieved the 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.
If there was a risk of unfairness, the court should only permit the giving of evidence by video-link where it was satisfied that otherwise a serious injustice would be done by a serious impairment of the prosecution’s case. The fact that the giving of evidence viva voce would be very unpleasant for the witness, or that coming to court to give evidence would be very inconvenient, would not be relevant factors.
He said he was satisfied the trial judge did not apply the correct test in this. She had regard to matters such as the relationship between the complainants and the accused, the reports on mental assessments of the complainants, and the unpleasantness of the experience of giving evidence.
While these were directly relevant to the matter of the psychiatric assessment for the defence, they would only arise in relation to giving video evidence if they supported evidence that the complainants could not otherwise give their evidence, or could not do justice to it. That core question did not appear to have been directly addressed.
He concluded that the impugned order put the applicant at risk of an unfair trial, and quashed it, remitting the matter to the Circuit Court for a rehearing of the application for video-link evidence.
The full judgment is on www.courts.ie
Luan O Braonáin SC and Remy Farrell, BL, instructed by Garrett Sheehan and Co, for the applicant; Paul Anthony McDermott BL, instructed by the Chief Prosecution Solicitor, for the DPP