O'D (D) v DPP v Judge Ryan

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 17 December 2009
• Neutral Citation: [2009] IEHC 559
• Docket Number: [2009 No. 232
• Court: High Court
• Date: 17 December 2009

[2009] IEHC 559

THE HIGH COURT

[No. 232 J.R. 2009]

O'D (D) v DPP v Judge Ryan

[2009] IEHC 559

D.O'D.

Applicant

And

Director of Public Prosecutions

And

Judge Patricia Ryan

Respondents

CRIMINAL EVIDENCE ACT 1992 S13

CRIMINAL LAW (SEXUAL OFFENCES) ACT 1993 S5

CRIMINAL LAW (SEXUAL OFFENCES) ACT 1993 S5(5)

CRIMINAL EVIDENCE ACT 1992 S13(1)(B)

CRIMINAL EVIDENCE ACT 1992 S13(1)

CRIMINAL EVIDENCE ACT 1992 S13(1)(A)

CRIMINAL EVIDENCE ACT 1992 S19

CRIMINAL LAW

Trial

Video link - Mentally impaired person - Sexual offences against mentally impaired persons - Complainants testifying via live video link - Whether this suggested to jury that complainants were mentally impaired - Whether real risk of unfair trial - Whether risk could be overcome by warnings or directions to jury - Criminal Evidence Act 1992 (No 12), ss 13 & 19 - Relief granted, case remitted for rehearing (2009/232JR - O'Neill J - 17/12/2009) [2009] IEHC 559

O'D v DPP & Judge Ryan

Facts section 13 of the Criminal Evidence Act 1992 provides that: "(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."

The applicant had been charged with having sexual relations with mentally impaired persons. Leave had been granted by the High Court to the applicant to seek an order of certiorari quashing the order of the second respondent directing the use of video link facilities pursuant to section 13(1)(b) of the Act of 1992. The applicant contended that the giving of evidence by video link by the two complainants would create a real risk that he would not get a fair trial because the giving of evidence by them by way of live video could or would convey to the jury that they were persons with mental impairment, a matter which he disputed as part of his defence.

Held by Mr. Justice O'Neill in quashing the order impugned that evidence by video link in the circumstances carried with it a real risk of unfairness to the accused which probably could not be remedied by directions from the trial judge or statements from the prosecution. Where the Court reached the conclusion that the giving of evidence in this way carried 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, were not relevant factors. The evidence had to establish to the satisfaction of the Court hearing the application under s. 13 of the Act of 1992 that the probability was that the witness in question would be deterred from giving evidence at all or would, in all probability, be unable to do justice to their evidence if required to give it viva voce in the ordinary way.

The fact that the application for the video link had been made under s.13(1)(b) rather than s.13(1)(a), if explained to the jury, could not 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.

Reporter: P.C.

1 O'Neill J.delivered the 17th day of December 2009.

1. The Reliefs

2 2 1.1 Leave was granted by this Court (Peart J.) to the applicant on the 2 ^nd of March 2009 to seek the following reliefs by way of judicial review proceedings:-

3 1. An order of certiorari quashing the order of the second named respondent dated the 20 ^th February, 2009, directing the use of video link facilities pursuant to s.13 of the Criminal Evidence Act 1992.

4 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

5 2 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."

6 3 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.

7 4 2.3 On the 20 ^th 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 ofthe 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:-

8 2 "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-

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

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

11 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.

12 5 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 previousapplication 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...