JudgeMr. Justice Hardiman
Judgment Date26 April 2005
Neutral Citation[2005] IESC 24
CourtSupreme Court
Docket Number[S.C. No. 285 of 2004]
Date26 April 2005
J.F. v. D.P.P.





[2005] IESC 24

McGuinness J.

Hardiman J.

Kearns J.




Criminal law - Practice and procedure - Fair procedures - Equality of arms - Right to cross-examine - Nature of right to cross-examine - Access to evidential material for purposes of preparing cross-examination - Evidence - Sexual assault - Psychiatric evidence purporting to explain complainant delay - Assessment of expert evidence

the applicant applied to judicially review the decision of the respondent to prosecute him for indecent assaults allegedly committed against a minor some years previously on the grounds of complainant delay. The applicant applied to strike out a paragraph of the respondent's statement of opposition and certain parts of affidavits which attempted to explain the delay in making the complaint of indecent assault on the basis that the complainant refused to allow the applicant's expert examine him for the purposes of rebutting the suggestion that the delay was attributable to the complainant's psychiatric condition caused by the applicant's alleged abuse. The applicant appealed the decision of the High Court (Murphy J.) to refuse his application to the Supreme Court. The Respondent contended, inter alia, that the expert who had examined the complainant had a duty to be independent and objective and that the applicant was therefore not entitled to have the complainant examined by his own expert which would prejudice the complainant's privacy and dignity.

Held by the Supreme Court in allowing the appeal and striking out the relevant portions of the respondent's pleadings:

1. That, the principle of equality of arms advanced by the applicant was not a new concept but rather a new expression of a value which was rooted in Irish procedural law.

2. That, in compliance with fair procedures, an accused should be furnished with a copy of the evidence which reflected on his good name, he should be allowed to cross-examine his accusers, he should be allowed to give rebutting evidence and should be allowed to address his own defence.

3. That, where there were conflicting views of a psychological or psychiatric nature as to why a particular person behaved in a particular way, an expert who had seen and assessed that person was at an advantage over an expert who had not done so. That disadvantage to a professional witness in not having personally assessed an individual whom the other side's expert had assessed on a number of occasions was so great that it deprived him of the opportunity effectively to present his case through an expert.

4. That oral contradiction in a public forum was the culmination of the work of the cross-examiner but was by no means the whole of it. It was the essence of cross-examination that the cross-examiner should have access to the materials for cross-examination. Accordingly, the refusal of access to the complainant for the applicant's expert subverted the right to cross-examination.

5. That the law of torts acted realistically in regarding the complainant as the institutor of criminal proceedings in an action for malicious prosecution and he should be so regarded for the purpose of the judicial review litigation as well as there was no reason why a defendant in criminal proceedings should be treated less favourably than a defendant in civil proceedings. As such, a person accusing another of an offence involving disgrace, loss of liberty, loss of reputation and professional oblivion could not control the degree to which relevant information about him would be shared with the person he accuses.

Obiter dictum: that the European Convention on Human Rights did not supply rights lacking in the constitutional regime of trial in due course of law.

Reporter: P.C.


JUDGMENT of Mr. Justice Hardimandelivered the 26th day of April, 2005.


This is the applicant's appeal from the judgment and order of the High Court (Murphy J.) dated the 22nd March, 2004, whereby the applicant's application to strike out a paragraph of the Statement of Opposition filed by the respondent, and certain parts of one affidavit filed on his behalf and the whole of another, was refused.


On the 14th November, 2001, the applicant was charged by the respondent with two counts of indecent assault on D. M, a male person, (born 1970) alleged to have taken place in January, 1988. He denies theseallegations.


On the 11th February, 2002, the applicant obtained leave from the High Court to apply, by way of judicial review, for an order restraining the respondent from proceeding with the prosecution, essentially on the ground of delay. On the 31st January, 2003, the prosecutor filed a Statement of Opposition: at paragraph 3 thereof he states:

"Insofar as there has been any delay in the making of the complaints as a result of which the applicant has been charged, that delay arises as a consequence of the effect of his acts upon the complainant and the reason why he failed to make an earlier complaint in respect thereof."


In support of this ground there was filed on behalf of the prosecutor an affidavit of Simon Wale, a chartered clinical psychologist, who is, amongst other things, a member of the Board of Management of the Rape Crisis Centre in Limerick, and a supervisor for that Body. He exhibited a 22 page report based on six "clinical interviews" with the complainant. His report is supportive of the prosecutor's case.


On the 27th February, 2003, the applicant's solicitor wrote to the Chief Prosecution Solicitor asking "whether the complainant in this matter would be willing to attend a psychologist nominated by us for the purpose of assessing him". The Chief Prosecution Solicitor replied by fax on the 28th April, 2003, the day before the case was listed for mention before the Court. She said:

"... The complainant in this matter has indicated to us that he is not willing to attend a psychologist nominated by you. We should be obliged if you could indicate your position in light of this information". (Emphasis in original)


The applicant next applied by motion to take strike out the Statement of Opposition. In the affidavit grounding that application the applicant's solicitor said that he consulted a psychiatrist who gave him certain advices as to alternative causes for those symptoms of the complainant relied on by the State to establish that the lapse of time in making the complaint was reasonable. The psychiatrist advised, however, "That it would be impossible to assess the actual cause without carrying out an independent assessment of the complainant" The Solicitor said that after the complainant's refusal to be examined was communicated he took the advice of counsel who advised that "such an assessment is central to the determination of the issues and for the fair disposal of these proceedings", and that "the refusal of the complainant to attend for independent assessment hinders and impedes unfairly the applicant in replying to the issues raised by the Statement of Opposition and in particular rebutting the finding that the delay on the part of the complainant in bringing the alleged offences to the attention of the authorities was reasonable". It may be significant to note that the applicant's contention, based on the advice of the psychiatrist retained by his solicitor, that it is impossible to assess the actual cause of the delay in bringing the complaint without an independent professional assessment of the complainant, has not been contradicted by or on behalf of the respondent.

The High Court.

In the course of argument before the High Court the applicant's position altered somewhat in that he no longer sought that the statement of opposition be struck out but only that paragraph 3 of the statement of opposition, paragraphs 6 - 17 of the complainant's affidavit and the whole of the affidavit of Mr. Wale be struck out. These, indeed, appear to be portions of the pleadings and affidavits which rely on psychological expertise, although the relevant portions of the applicant's affidavit consist in the main of statements of fact, albeit expressed in a manner which may, in part, reflect exposure to apsychologist.


In relation to the psychologist's report the learned trial judgeheld:

"... It does not seem to me that the Court should strike out the affidavit and therefore the comprehensive report contained therein which in turn is based on the papers before the Court and particularly a complaint of the complainant himself. Justice can be done in this case by cross-examining the psychologist on his own report and on such matters as malingering alcoholism etc. Moreover his report is based on the papers indicated and can be fairly, and to my mind sufficiently, tested in cross-examination without any further

examination of the complainant. In view of the above it would not be appropriate to strike out the impugned portions of the statement of grounds [of opposition]".

The applicant's case.

The applicant says that the Director relies on the opinion of an expert psychologist which was itself formed on the basis of six lengthy "clinical interviews" over a period of some months. He too has consulted an expert, a psychiatrist, who is dubious about the testimony of the Director's expert testimony but says that it is not possible to express a professional opinion on the cause of the complainant's delay without a professional assessment of the complainant. This view has not been contradicted. Since the applicant will be damnified if the Director's expert's view prevails, he must have the opportunity, if possible, of countering it with another expert opinion, which requires assessment of the complainant by that expert. This opinion will be of assistance in cross-examining the prosecutor's expert and in...

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