DPP v H
| Jurisdiction | Ireland |
| Judge | Ms. Justice O'Malley |
| Judgment Date | 17 July 2018 |
| Neutral Citation | [2018] IESC 32 |
| Docket Number | [S.C. No. 154 of 2016],[Supreme Court Appeal No: 154/2016] [High Court Record No: Bill No. CCDP0092/2014] |
| Court | Supreme Court |
| Date | 17 July 2018 |
[2018] IESC 32
THE SUPREME COURT
O'Malley Iseult J.
Clarke C.J.
McKechnie J.
Dunne J.
O'Malley Iseult J.
Finlay Geoghegan J.
[Supreme Court Appeal No: 154/2016]
[High Court Record No: Bill No. CCDP0092/2014]
Appellate jurisdiction – Staying a trial – Rape – Appellant seeking to raise an issue as to the appellate jurisdiction of the Court of Appeal in relation to an order of the Central Criminal Court staying a trial – Whether the stay imposed by the trial judge should be lifted
Facts: The appellant, the Director of Public Prosecutions, raised an issue as to the appellate jurisdiction of the Court of Appeal in relation to an order of the Central Criminal Court staying a trial. The Director sought leave to appeal directly to the Supreme Court on the basis of a belief that no appeal lies to the Court of Appeal against such a ruling. The substantive issue in the case concerned the powers available to a judge who comes to a view that, while a directed acquittal would not be appropriate, the state of the evidence is such as to make it unfair to the defence to proceed with the trial. The issue arose on foot of an order of the Central Criminal Court (Murphy J), staying the prosecution of four rape charges against the respondent pending further investigation of the complainant's evidence. The trial judge made the order of her own motion, having held that the failure of the Director to resolve a perceived discrepancy in the material relating to the complaint, prior to the decision to prosecute, had created a real risk of an unfair trial. However, she refused to direct an acquittal, holding that the evidence as given by the complainant in the trial was sufficient to go to a jury. The Director's complaint related to the finding of the trial judge that the prosecution was under a duty to clarify "serious inconsistencies" in a witness's statements before deciding to prosecute, where such inconsistencies might go to the reliability of that witness's evidence. The Director argued that this intervention by the trial judge, firstly, was not justified on the facts of the case and, secondly, failed to respect the nature of the prosecution function and constituted an impermissible usurpation of the roles of both the defence and the prosecution in the trial process.
Held by the Court that the order made by the trial judge in this case was extremely unusual. The Court concluded that, on the facts of the case, it was not a necessary or appropriate order. In principle the Court considered that an order of that nature should be made only in exceptional circumstances.
The Court held that, in the circumstances, it would allow the appeal and grant an order lifting the stay imposed by the trial judge.
Appeal allowed.
This appeal raises, in the first instance, an issue as to the appellate jurisdiction of the Court of Appeal in relation to an order of the Central Criminal Court staying a trial. The appellant (hereafter 'the Director') sought leave to appeal directly to this Court on the basis of a belief that no appeal lies to the Court of Appeal against such a ruling.
The substantive issue in the case concerns the powers available to a judge who comes to a view that, while a directed acquittal would not be appropriate, the state of the evidence is such as to make it unfair to the defence to proceed with the trial. The issue arises on foot of an order of the Central Criminal Court (Murphy J.), staying the prosecution of four rape charges against the respondent pending further investigation of the complainant's evidence. The trial judge made the order of her own motion, having held that the failure of the Director to resolve a perceived discrepancy in the material relating to the complaint, prior to the decision to prosecute, had created a real risk of an unfair trial. However, she refused to direct an acquittal, holding that the evidence as given by the complainant in the trial was sufficient to go to a jury.
The Director's complaint relates to the finding of the trial judge that the prosecution was under a duty to clarify ' serious inconsistencies' in a witness's statements before deciding to prosecute, where such inconsistencies might go to the reliability of that witness's evidence. The Director argues that this intervention by the trial judge, firstly, was not justified on the facts of the case and, secondly, failed to respect the nature of the prosecution function and constituted an impermissible usurpation of the roles of both the defence and the prosecution in the trial process.
Before setting out the facts giving rise to this dispute, it is necessary to point out that much of what follows was not adduced in evidence before the jury. The trial judge's concerns arose when certain documents came to her attention in the course of a voir dire. The original focus of that process was on the contention advanced on behalf of the defence that the delay in the case had caused irreparable prejudice to the accused. The material giving rise to the issue now before the court relates to the terms of complaints made about the accused by the complainant to a social worker, at a time long before the charges were brought against him.
In trials involving sexual offences, complaints made at the first reasonable opportunity may be admissible at the instance of the prosecution as evidence of the complainant's consistency. The statements in issue here, whether entirely consistent with the complainant's oral evidence or not, would not have qualified under this principle as they were not made at the first reasonable opportunity and would have been caught by the rule against hearsay or the rule against self-corroboration. It was, of course, at all times open to the defence to introduce the material in cross-examination for the purpose of showing inconsistency on the part of the complainant. However, to do so would in all likelihood have risked the introduction of evidence adverse to the accused.
Following a statement of complaint made by the complainant to the Gardaí in March, 2013 the respondent was arrested in September, 2014 and charged with four counts of rape and two counts of sexual assault, alleged to have taken place in one of three summers between 1987 and 1989 when the complainant was aged between nine and eleven.
The complainant had initially made allegations of abuse to an older sister in or about the month of April, 1992. The appropriate state authority at the time, the Eastern Health Board ('the EHB'), was notified in late 1992, following a meeting of the complainant with a psychologist. It was at this juncture that a social worker attached to the EHB Community Care Division, a Ms. Convery, became involved in the matter.
Ms. Convery referred the complainant to St. Louise's Unit in Crumlin, which at that time was a newly established unit specifically dedicated to assessing and validating the occurrence of child sexual abuse. The referral letter stated that the complainant had alleged that the respondent had put his penis into her ' a few times'. It also stated that the complainant's memories of the abuse were ' confused' and that she would like to get help so that she could remember exactly what had happened to her.
The complainant was interviewed in the unit in April, 1993 but, due to some reluctance on the part of her mother, no medical examination was carried out. Nothing further occurred until the complainant herself, then aged 14, rang St. Louise's in May, 1994. This resulted in the production of a validation report, based largely on the notes and video of the April 1993 interview. The report referred to the use by the complainant of the words ' abuse', ' rape' and ' sex', and stated that the abuse detailed by the complainant encompassed fondling of the genitals, penile genital contact and oral genital contact.
Following this assessment, it appears that a number of case conferences took place. Certain of the notes of these conferences are the source of the trial judge's concerns, and are set out in more detail below.
A formal notification of child abuse was sent by Ms. Convery to the superintendent of An Garda Síochána at Bray Garda Station in June, 1995. However, the complainant (then aged 17) and her mother indicated that they did not wish to pursue the matter to court, and no prosecution was brought at that time.
The complainant was subsequently approached by a detective garda in 2013 after another local woman had made a complaint against the respondent. At that stage she made a statement in which she clearly stated that on four separate occasions at four specified locations the accused had put his penis into her vagina, and that on two of those occasions he sexually assaulted her. The allegations were investigated and a file was sent to the DPP. Ultimately a decision was made to charge the accused with four counts of rape and two charges of sexual assault.
The trial took place over 14 days in November, 2016. The trial judge was informed by the parties that there was as an issue as to delay in the case, and it was decided after some discussion that this issue would be determined by way of a voir dire, directed to the question whether the trial should be stayed by reason of delay, after the substantive trial evidence was complete. The prosecution case was, as far as the jury was concerned, completed after three days, at which point the Court embarked upon the voir dire. This ran for nine days and included evidence from the complainant and from Ms. King, the author of the St. Louise's validation report. Ms. Convery was not available to give evidence in the trial and the defence had not previously requested that...
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