DPP v Rita O'Driscoll
| Jurisdiction | Ireland |
| Judge | Birmingham P. |
| Judgment Date | 17 January 2022 |
| Neutral Citation | [2022] IECA 4 |
| Docket Number | [205/20] |
| Court | Court of Appeal (Ireland) |
[2022] IECA 4
The President
McCarthy J.
Murray J.
[205/20]
THE COURT OF APPEAL
Conviction – Murder – Unfair trial – Appellant seeking to appeal against conviction – Whether the trial was rendered unfair and unsatisfactory by reason of the fact that a witness was permitted to give evidence via video link and with the assistance of an intermediary
Facts: The appellant, Ms O’Driscoll, on 28th October 2020, was convicted of the offence of murder. She had stood trial charged that: (a) she had murdered Mr T Foley on 8th October 2018 at 12 Dan Corkery Place, Macroom, County Cork; and (b) she had committed an offence contrary to s. 4 of the Non-Fatal Offences Against the Person Act 1997 against one Mr J Foley on the same occasion and at the same location. She was acquitted on the second count, and appealed to the Court of Appeal her conviction on the first. While a number of grounds of appeal were initially formulated, the appeal proceeded on two linked grounds of appeal. These were that the trial was rendered unfair and unsatisfactory by reason: (a) of the fact that the principal prosecution witness, Mr J Foley, was permitted to give evidence via video link; and (b) of the fact that that witness was permitted to give evidence with the assistance of an intermediary.
Held by the Court that while counsel for the appellant was correct in distinguishing between a brain injury and a mental disorder, and in submitting that it is possible to sustain the former without suffering the latter, the evidence clearly established both a physical trauma to Mr J Foley’s brain and a subsequent limitation on his powers of comprehension and articulation which, on any version, entitled the trial judge to conclude that Mr J Foley suffered from a mental disability. The Court held that the combination of that finding and the evidence that his ability to respond to questions in a court environment would be impaired more than justified the judge in exercising her discretion to enable him to give his evidence by video link. The Court held that the same evidence established the power to direct that his evidence be given with the assistance of an intermediary, and the propriety of exercising that power in the circumstances. The Court held that it was clear from the exchanges between defence counsel and the proposed intermediary in the Central Criminal Court that all involved with the issue envisaged that the intermediary’s role would be to intervene where there was a concern about the possibility of confusion or lack of comprehension, and to request that a question be reformulated by counsel. The Court held that this was precisely what occurred; there was no occasion when the question was actually formulated and put by the intermediary. In all the circumstances, the Court was satisfied that the rulings of the trial judge on the twin issues of video/television link and intermediary were unimpeachable. The Court held that they were rulings that were open to her.
The Court held that the appeal would be dismissed.
Appeal dismissed.
JUDGMENT of the Court delivered on the 17 th day of January 2022 by Birmingham P.
. On 28 th October 2020, the appellant was convicted of the offence of murder. She had stood trial charged (a) that she had murdered Timmy Foley on 8 th October 2018 at 12 Dan Corkery Place, Macroom, County Cork, and (b) that she had committed an offence contrary to s. 4 of the Non-Fatal Offences Against the Person Act 1997 against one Jason Foley on the same occasion and at the same location. She was acquitted on this second count, and now appeals her conviction on the first.
. While a number of grounds of appeal were initially formulated, the appeal has proceeded on two linked grounds of appeal. These were that the trial was rendered unfair and unsatisfactory by reason (a) of the fact that the principal prosecution witness, Jason Foley, was permitted to give evidence via video link, and (b) of the fact that that witness was permitted to give evidence with the assistance of an intermediary.
. The deceased, Timmy Foley, was the appellant's former husband, Jason Foley being his brother. At the relevant time, Timmy and Jason Foley resided at 12 Dan Corkery Place. The prosecution case was that the appellant visited there on 7 th October 2018. There was evidence of drink being consumed by all parties present, and at some time in the early hours of the morning of 8 th October, there was a fracas, in the course of which Timmy Foley sustained fatal knife-inflicted stab wounds. Jason Foley also received serious injuries, and again, these were inflicted by a knife. It was the prosecution case that the appellant inflicted the injuries on Timmy and Jason Foley, although as noted she was acquitted in relation to the s. 4 charge in respect of the latter. So far as the trial is concerned, it will be readily apparent that Jason Foley's evidence was significant, both as a witness to the relevant events, and indeed as a complainant in relation to the assault charge.
. The relevant provisions governing the taking of evidence by video link and with the assistance of an intermediary appear in the Criminal Evidence Act 1992 (“the 1992 Act”), as amended by s. 257 of the Children Act 2001 and s. 30 of the Criminal Justice (Victims of Crime) Act 2017. Sections 13(1) and (1A) of the 1992 Act provide as follows:
“13.—(1) In any proceedings … for an offence to which this Part applies 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 18 years of age, unless the court sees good reason to the contrary,
(b) in any other case, with the leave of the court.
(1A) In any proceedings … relating to an offence, other than a relevant offence, a court may, subject to section 14AA, grant leave for a victim of the offence to give evidence, whether from within or outside the State, through a live television link.”
Section 14 enables certain persons in certain circumstances to give evidence through an intermediary. It provides at s. 14(1), (1A), and (2):
“14.—(1) Where—
(a) a person is accused of an offence to which this Part applies, and
(b) a person under 18 years of age is giving, or is to give, evidence through a live television link,
the court may, on the application of the prosecution or the accused, if satisfied that, having regard to the age or mental condition of the witness, the interests of justice require that any questions to be put to the witness be put through an intermediary, direct that any such questions be so put.
(1A) Subject to section 14AA, where—
(a) a person is accused of an offence other than a relevant offence, and
(b) a victim of the offence who was under 18 years of age, is giving, or is to give, evidence through a live television link,
the court may, on the application of the prosecution or the accused, if satisfied that the interests of justice require that any questions to be put to the victim be put through an intermediary, direct that any such questions be so put.
(2) Questions put to a witness through an intermediary under this section shall be either in the words used by the questioner or so as to convey to the witness in a way which is appropriate to his age and mental condition the meaning of the questions being asked.”
Section 19 provides, under the title “Application of Part III to persons with mental handicap”:
“19.—The references in sections 13(1)(a), 14(1)(b), 15(1)(b) and 16(1)(a) and (b)(ii) to a person under 18 years of age … shall include references to a person with a mental disorder within the meaning of section 5 of the Criminal Justice Act 1993, who has reached the age concerned.”
. Section 5 of the Criminal Justice Act 1993 (“the 1993 Act”), as amended by s. 4 of the Criminal Procedure Act 2010 (“the 2010 Act”) defines “mental disorder” as including “a mental illness, mental disability, dementia or any disease of the mind”. The 1993 Act is further amended by the 2010 Act with the insertion of s. 5B thereof:
“5B.—(1) Where a child or a person with a mental disorder is giving, or is to give evidence through a live television link, pursuant to section 5A, the court may, on the application of the prosecution or the accused, if satisfied that, having regard to the age or mental condition of the witness, the interests of justice require that any questions to be put to the witness be put through an intermediary, direct that any such question be so put.
(2) Questions put to a witness through an intermediary under this section shall be either in the words used by the questioner or so as to convey to the witness in a way which is appropriate to his or her age and mental condition, the meaning of the questions being asked.
(3) An intermediary referred to in subsection (1) shall be appointed by the court and shall be a person who, in its opinion, is competent to act as such.”
. In summary, the position is that insofar as the proceedings were for a relevant offence, being an offence involving violence or the threat of violence to a person, a person other than the accused may give evidence through a live television link with the leave of the Court. In the event that the Court determined to make such an order in respect of a particular witness, then, if the person giving evidence was a child (which was obviously not the position here) or a person with a mental disorder (which the prosecution contended was the case), the Court might, on the application of the prosecution or the accused, direct that any questions be put to the witness through an intermediary. Before making such an order, the Court must be satisfied that, having regard to the age or mental condition...
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