J.F. -v- DPP, [2005] IESC 24 (2005)

Docket Number:285/04
Party Name:J.F., DPP
Judge:Hardiman J.
 
FREE EXCERPT

THE SUPREME COURT

JUDICIAL REVIEW

McGuinness J. 285/04

Hardiman J.

Kearns J.

Between:

JF

Applicant/Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

JUDGMENT of Mr. Justice Hardiman delivered 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.

Background.

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 these allegations.

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 a psychologist.

In relation to the psychologist's report the learned trial judge held:"… 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 putting another professional view before the Court. If he is not permitted to do these things the Director's expert, and therefore the Director, will be at a wholly unjustified advantage, and he at a wholly unjustified disadvantage, in fighting these proceedings. Both Irish law, in a series of cases from Re Haughey [1971] IR 217 to Maguire v. Ardagh [2002] 1 IR 385 and the law of the European Convention of Human Rights, particularly in regard to égalité des armes, require that his right to fair procedures be vindicated by according him this examination. If this cannot be done because the complainant will not agree to it, the relief he seeks is necessary in order to deprive the prosecution of...

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