L (M) v DPP and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 13 November 2015
• Neutral Citation: [2015] IEHC 704
• Court: High Court
• Date: 13 November 2015

[2015] IEHC 704

THE HIGH COURT

[No. 524 JR/2014]

L (M) v DPP & Anor

JUDICIAL REVIEW

BETWEEN

M.L.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

THE ATTORNEY GENERAL

NOTICE PARTY

Crime & Sentencing – Sexual assault – European Convention of Human Rights – Criminal Justice (Mutual Assistance) Act 2008 – Absence of relevant documents – Discovery of documents from third parties – Fair trial – locus standii

Facts: The applicant sought an injunction for restraining his criminal trial on the basis that the charges of sexual assault made against him by the complainant could not be proved in the absence of relevant documents and thus, there was a risk of an unfair trial. The applicant also sought a declaration that absence of a procedure where the applicant or the respondent could obtain orders directing a third party residing out of state to provide disclosure of documents in the context of an indictable criminal offence was contrary to the State's obligation under art. 6 of the European Convention on Human Rights.

Mr. Justice Noonan refused to grant an order of prohibition to the applicant. The Court held that the missing records were not the basis to prohibit a criminal trial and that the missing evidence in question should be of the nature to give rise a real possibility that in the absence of that evidence, the accused would be unable to present his case in his defence. The Court observed that where the accused had the benefit to avail the alternate remedies, it was not open to seek the exceptional remedy of prohibition of trial. The Court found that in the present case, the accused could seek redressal of his grievance in the trial court by requesting for letter of requests under the Criminal Justice (Mutual Assistance) Act 2008. The Court opined that the primary onus to ensure that the applicant's rights had been vindicated was on the Court of trial established under the Constitution and not on the Court of Appeal.

1 JUDGMENT of Mr. Justice Noonan delivered the 13th day of November 2015.

Introduction

2 1. By order of this court (Cross J.), made on the 3 ^rd of September 2014, the applicant was given leave to seek, inter alia, the following reliefs by way of judicial review:-

3 (a) An injunction restraining the further prosecution of the applicant by the respondent in proceedings bearing the title DPP v. M.L. in respect of charges set out in a bill presently pending before the Circuit Criminal Court;

4 (b) A declaration pursuant to s. 5 of the European Convention on Human Rights Act 2003 that the failure to put in place a mechanism whereby the applicant and/or the respondent may seek and/or obtain an order or orders directing a third party to provide disclosure of documents in the context of an indictable criminal trial and the applicant's trial, in particular, is incompatible with the State's obligations pursuant to Article 6 of the European Convention on Human Rights.

Background Facts

5 2. The charges pending against the applicant relate to sexual assaults allegedly perpetrated between June 1988 and August 1991 when the male complainant was aged between 11 and 15 years and was employed as a labourer on the applicant's farm. The complaint was first made to the Gardaí in 2008, some ten years after the earliest alleged assault.

6 3. In 1992, when the complainant was 16, he attended an anonymous counselling service although at that time he appears not to have disclosed any allegations of sexual abuse. The practice of this anonymous service was not to make a record of any interviews or sessions with clients.

7 4. Commencing in 2001 when the applicant was about 25, he attended counselling sessions with a psychotherapist in London, a Mr. Dyrud, for a period of some two years. Mr. Dyrud is now resident in Norway. At the request of the investigating Garda, Mr. Dyrud provided two reports which are essentially identical save for some inconsequential amendments both dated the 1 ^st of November, 2013. These reports give an account of events consistent with the allegations made in the statement of the complainant contained in the Book of Evidence. The investigating Garda asked Mr. Dyrud to provide the notes of his therapy sessions with the complainant but Mr. Dyrud indicated that he had destroyed these some years previously. Further attempts were made to secure additional information from Mr. Dyrud but he ceased responding. The prosecution does not propose calling Mr. Dyrud as a witness in the case. The complainant says that Mr. Dyrud is the first person to whom he disclosed his sexual abuse by the applicant. Complaint is made by the applicant of the fact that Mr. Dyrud does not appear to be a registered therapist in the UK as he claims to be and in addition, the applicant says that there is evidence to show that he is or was a friend and business associate of a close relative of the complainant.

8 5. In January 2008 when the complainant was 32 and working in Abu Dhabi, he attended a consultant psychiatrist there, Dr. Abouallaban, for treatment of complaints of post traumatic stress disorder relating to the alleged sexual abuse. Dr. Abouallaban provided a short report dated the 31 ^st of January, 2011, to the investigating Garda who sought further relevant documentation subsequently from Dr. Abouallaban. However despite the Garda's best efforts, Dr. Abouallaban did not communicate further with him. As in the case of Mr. Dryud, there was nothing in Dr. Abouallaban's brief report inconsistent with the complainant's allegations. The prosecution does not propose calling Dr. Abouallaban as a witness either.

9 6. It appears that Dr. Abouallaban referred the complainant for psychotherapy to Dr. Jim Collins who carried on a sole practice in Abu Dhabi but subsequently retired and died in the United States in 2012. No documents are available from that source either.

Submissions

10 7. The essential contention made by Ms. Gearty S.C. for the applicant is that the absence of documents in the circumstances described above now renders a fair trial impossible. She argues that the facts of this case are unusual because there is absolutely no evidence of any kind that corroborates the evidence of the complainant. It is clear that he spoke to a number of people about the events in issue for therapeutic purposes and of those, one is deceased and two will not cooperate with regard to making documents available.

11 8. Moreover there is no mechanism under our law which enables her client to access the counselling notes which are known to exist, thereby depriving the applicant of a potentially critical opportunity of undermining the complainant's credibility in circumstances where inconsistencies may well arise from those notes. These would constitute the only "islands of fact" in a case such as this and there should be a legal onus on the plaintiff to produce these notes. It has been demonstrated that between 5% and 8% of complaints of historic sexual abuse are false but the applicant has been left without the means to defend himself by testing the consistency of the complainant's evidence.

12 9. The applicant submits that no direction of the trial judge could conceivably remedy this situation short of a direction to acquit the applicant. In that event, where there can only be one outcome, it should be brought about now and it would be unfair to the applicant to have to await the outcome of a trial for that purpose. She relied in that regard on well known authorities such as State (Healy) v. Donoghue [1976] I.R. 325, D. v. DPP [1994] 2 I.R. 465, Z.. v. DPP [1994] 2 I.R. 476 and Wall v. DPP [2013] IESC 56. Reliance was also placed on P.G. v DPP [2007] 3 I.R. 39 and J. O'C. v. DPP [2000] 3 I.R. 478.

13 10. With regard to the claim for relief in respect of the failure of the State to provide for an appropriate disclosure/discovery mechanism against third parties, the applicant referred to People (DPP) v. Sweeney [2001] 4 I.R. 102, D.H. v. Judge Groarke [2002] 3 I.R. 522 and the judgment of Edwards J. in HSE v. Judge White [2009] IEHC 242.

14 11. Ms. Brennan B.L. on behalf of the DPP submitted that there is no issue in this case as to disclosure since it is agreed that the prosecution has disclosed everything in its power, possession or procurement. She submitted, on the central issue of the ability of the applicant to receive a fair trial, that it was insufficient for the applicant to allege that there were unobtainable documents in existence which might possibly indicate some inconsistency in the complainants account. This was purely speculative and there was ample authority for the proposition that the...