G. Oær. v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 07 October 2011
• Neutral Citation: [2011] IEHC 368
• Court: High Court
• Docket Number: [2010 No. 1299 JR],2010 1299 JR
• Date: 07 October 2011

[2011] IEHC 368

THE HIGH COURT

Mr. Justice Charleton

2010 1299 JR

BETWEEN

G. O' R.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Abstract:

Administrative law - Judicial review -Criminal law - Injunction - Coaching of witness - Whether the complainant's participation in a role play of court proceedings with a clinical psychologist resulted in a real risk of the applicant receiving an unfair trial.

Facts The applicant, who was charged with sexual violence sought to injunct his trial because it was claimed that the complainant was coached as to how she should give evidence. The offence was alleged to have taken place on 10 August 2007 in the applicant's home. The applicant denied the allegation. The trial was considerably delayed and eventually on 3 February 2010 a jury was empanelled and the trial commenced the next day. Counsel for the defence learned at that time that the complainant had attended counselling sessions for trauma and notes of those sessions were subsequently given to the defence. It was claimed by the applicant that the psychologist engaged in role play with the complainant whereby the psychologist took on the task of pretending to be a defence barrister in order to prepare the complainant for the trial. It was claimed that by this approach, the psychologist irremediably tarnished the prospect of a fair trial.

Held by Charleton J. in refusing the application: That the burden of proof on the applicant in this application required that he engage with the evidence in order to demonstrate how the circumstances complained of amounted to a real risk of an unfair trial. The availability of the jurisdiction of the trial judge to stop a trial constituted an adequate alternative remedy to judicial review and, as such, ought to be considered as a discretionary ground for refusing judicial review. The primary duty of ensuring that a trial was fair rested upon the trial judge. However, the issue raised in this case was a completely novel point concerning alleged witness coaching and consequently judicial review was, in these circumstances, an appropriate remedy. For a witness to be directed as to what they should say in order to prove a case fundamentally strikes against the proper administration of justice. In this case, having examined the statements made by the psychologist and having read the psychologist's notes, while the intervention by way of the brief acting out of the roles of defence counsel and witness was undesirable, it was not directive towards any particular result and it could not be regarded as distorting the evidence. Instead, it created an issue, which might be explored by the defence and if they so chose, and if so explored, may become part of the defence case. It may be that, if the issue of inappropriate discussion with a witness prior to a trial is raised, the trial judge might wish to specifically address any issue by way of a direction whereby he or she points out that if the result of the therapeutic intervention was to cast doubt upon the soundness of the account to be given by the alleged victim, then this has to be taken into account in the adjudication of whether the prosecution had met the burden of proving their case beyond reasonable doubt. However, that was a matter within the discretion of the trial judge. Since this application involved a novel point of law, the usual costs order that costs follow the event might not have been appropriate. The court requested submissions regarding this issue. R v Momodou [2005] 1 W.L.R. 3442 approved.

Reporter: L.O'S.

1 Judgment of Mr. Justice Charleton delivered on the 7th October 2011

2 1. This application seeks to injunct the trial of the applicant G. O'R. on a charge of sexual violence because, it is claimed, the alleged victim of the offence was coached as to how she should give evidence. The resolution of this issue requires some discussion as to the proper approach to witnesses by those tasked with preparing for a criminal trial, be they police or lawyers or therapists. But first, the facts that will be in dispute at trial.

3 Facts in Issue

4 2. On the 10th of August 2007, together with a number of other young men and women, the applicant attended a party at his own address in student accommodation in Limerick. A young lady who came to that party later made a complaint of sexual assault against him. It is likely, at trial, that the conduct of the complainant while at the party will be closely scrutinised. The circumstances of the party were apparently typical of a contemporary student gathering, with people arriving and leaving throughout the course of the evening. Alcohol was available for the guests. The complainant drank some beer. It is claimed that at or around midnight she declined the offer of a lift home with a friend whose father was picking her up from the party. She said that her plan was, instead, to later call a taxi. Shortly after that, according to the complainant, she went into the applicant's bedroom in order to retrieve her mobile phone, as she felt that the time had come to ring for a taxi. What happened in the bedroom is the subject of conflicting accounts given by the complainant and the applicant to the gardaí.

5 3. While under arrest, the applicant claimed that he was not aware of the age of the complainant. He painted a background of socialising and chatting with the complainant for a considerable part of the evening. The applicant said that they had watched television together and had spoken on the balcony of the flat. Subsequently, according to him, they were alone in his bedroom and talking. He claims that they began stroking each other fondly and then feeling each other while lying on his bed. According to the applicant, the complainant permitted him to remove her jeans to facilitate intimate touching. This activity ended, the applicant claims, because the complainant did not seem interested and she turned away from him.

6 4. In her statements to the Gardaí, the complainant accepts that she and the applicant had been chatting while at the party. That interaction continued with them both sitting on the bed after she had gone in to his room in order to get her mobile phone. They sat on the bed chatting. She claims that she then fell asleep on the bed, with her back leaning against the wall having been sitting there for some time. She claims that when she awoke, the duvet cover was over her and she was lying flat on her back. She asserts that her jeans had been removed, without her consent, and that the applicant was touching her intimately. She says that she moved away from him and found her jeans thrown across a chair. Another person, related to the applicant, came in and asked was she okay. She did not say anything to him.

7 5. The trial of the case was considerably delayed. Eventually, on the 3rd February 2010, a jury was empanelled and the trial commenced the next day. During the empanelling, informal discussions between prosecution and defence counsel revealed that the complainant had attended counselling sessions for trauma. The defence sought more information. Notes of the counselling sessions were passed to the defence. A clinical psychologist, whom I will simply refer to as "the doctor", had counselled the complainant between 10th September and the 29th October 2009. The approach of the doctor is the central to this judicial review application to injunct the continuance of the trial.

8 6. It is claimed by the applicant that the doctor counselled the complainant not only in relation to what had happened to her, which would be unexceptionable, but that she also engaged in role play with her client whereby the doctor took on the task of pretending to be a defence barrister in order to prepare the complainant for the trial. Since much is made of this claim, I intend to refer as appropriate to the doctor's notes and to quote the relevant portion. There is nothing disclosed in the notes which could raise any issue of alleged impropriety in the sessions of the 10th September and the 24th September 2009. It is during the session of the 9th October 2009 that it is alleged that coaching took place. In portions of her notes, the doctor records the complainant as suffering from feelings of fear and anger arising from the incident. By this stage, fears around the court case had also become central. The notes record:-

9 "Also worries that he will get off. How she will be in court. What she is putting her family through. Tired of people saying that he might get off. Their mother - trying to get [complainant] to detract and not go to court. Last week - she got drunk and told [complainant] she should reconsider. Annoys [complainant]. Do people disbelieve her? Will her mother cope with outcome? Mother worried about [complainant]. [Complainant] wonders if she'll cope herself. Also feels since she started sessions that she is thinking more about [not readable]. Crying more, knows how much she means to her. [Complainant] was tearful. Acknowledges she tries to be strong, doesn't like to show emotion. We practiced "role-play" scenarios of what court situation would be like. [Complainant] finds this good. Finds it hard, afraid will [illegible]. She doesn't want to show emotion. Agreed to meet again next month two/three more sessions? Generally [complainant] reports herself to be functioning well all of the time. May do clinical assessment tools to assess this formally."

10 7. It is claimed that by this approach, the doctor has irremediably tarnished the prospect of a fair trial. In addition to all of her clinical notes, the doctor supplied a formal statement to the gardaí. In that statement she outlines the pressures which arose for the complainant by reason of delay in hearing the trial. To address this and the trauma of the...