Vattekaden v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 24 July 2015
• Neutral Citation: [2015] IEHC 494
• Court: High Court
• Docket Number: [2014 No. 421 J.R.]
• Date: 24 July 2015

BETWEEN

ANTHONY BABU VATTEKADEN

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

[2015] IEHC 494

[2014 No. 421 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Crime & Sentencing – Judicial review – S. 2 of the Criminal Law (Rape) (Amendment) Act 1990 – Sexual assault – Whether disclosure of victim's prior assault material – Fair trial

Facts: The applicant sought an order of prohibition of his trial on foot for sexually assaulting the complainant. The applicant contended that the concealment of the facts relating to the prior sexual assault on the complainant was prejudicial to the outcome of the present proceedings and against the principle of a fair trial.

Mr. Justice Noonan refused to grant an order of prohibition to the applicant. The Court held that before invoking the remedy by way of prohibition, the applicant must show that there existed a real risk of an unfair trial wherein the applicant was devoid of presenting possible evidence or line of defence. The Court found that the concealment of the facts of two prior sexual assault of the complainant had no bearing on the independent sexual assault alleged to have been committed by the applicant on the complainant. The Court observed that there existed enough provision for the trial judge to redress the issue in an appropriate manner and the trial of the applicant would not be prejudiced in any manner as there had been no unnecessary delay or irregularities on the part of the prosecution.

JUDGMENT of Mr. Justice Noonan delivered the 24th day of July, 2015.

Introduction

1 In the within judicial review proceedings, the applicant seeks an order prohibiting his trial on foot of Bill No. 28/13 before the Dublin Circuit Criminal Court where he stands charged with the offence of sexually assaulting one JO'B (‘the complainant’) on the 25th August, 2011 at Babu's Ayurvedick Rejuvenation Therapy Centre, 44 Westmoreland Row, Dublin 2, contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990 (as amended by s. 37 of the Sex Offenders Act 2001).

Background Facts

2 The female complainant alleges that during the course of receiving a massage from the applicant on the 19th August, 2011, he touched her vagina. She made a complaint to the Gardaí on the 25th August, 2011. The Gardaí subsequently obtained CCTV footage from the Centra Shop beside the Therapy Centre where the alleged sexual assault occurred. This footage is said to show the complainant and the applicant together on the footpath outside the premises in circumstances consistent with the prior statement of the complainant. The prosecution also alleges that the complainant's telephone number was found on the applicant's mobile telephone, saved under the name ‘Jason’.

3 The applicant is further alleged to have made certain admissions when interviewed by the Gardaí. The complainant had alleged that following the assault, she telephoned the applicant to advise him that she was going to report the matter to the Gardaí and he offered her money not to do so. When asked about this, the applicant appears to have confirmed the complainant's version of events. Further, the applicant appears to have admitted that when he sat beside the applicant outside the Centra shop, he was crying. It is also alleged by the prosecution that the applicant furnished no satisfactory explanation for the apparent attempt to conceal the complainant's telephone number from his wife by saving it under ‘Jason’.

The Proceedings

4 The book of evidence was served on the applicant on the 18th December, 2012. The matter was first listed before the Circuit Criminal Court on the 11th January, 2013 when it was adjourned to allow the defence to raise the issue of disclosure.

5 On the 14th January, 2013, the applicant's solicitors sought a number of matters by way of specific disclosure and in particular the following:

‘11. Details of any complaints of an indecent or sexual nature made against any other persons by the complainant’.

6 On the 11th March, 2013, the court fixed the 14th November, 2013 as the trial date. Various reminders were sent by the applicant's solicitors including an urgent reminder on the 29th October, 2013 detailing the outstanding disclosure issues including that referred to at item 11. The DPP's office responded on the 7th November, 2013 saying, inter alia, with regard to item 11: ‘We are awaiting instructions.’

7 On the morning of the trial, the 14th November, 2013, the prosecution indicated to the court that certain new matters had come to light which required a short adjournment and the matter was put back to the 18th November, 2013. When the matter came before the court again on the 18th November, 2013, the defence were served with a letter from the respondent enclosing new material including statements from the complainant and from the investigating Garda.

8 In essence, this material disclosed that the complainant alleged two prior incidents of sexual assault when she was a child. The first was alleged to have occurred in 1993 when the complainant was 11 years of age and a man who was a member of her extended family rubbed her genital area and tried to pull down her pyjama bottoms and underwear while she was asleep. She said that she did not tell anybody at the time. The second instance alleged was that in 1999, when the complainant was 16, she was raped in the stairwell of one of the Ballymun Towers by a ‘guy she knew’ having consumed a large amount of vodka and some cannabis. She said that she reported this incident to the Rape Crisis Centre within a week of it allegedly occurring.

9 In a supplemental statement of the 14th November, 2013, the complainant said that she did not tell the investigating Garda about these incidents previously because she did not feel they were relevant to the case but she now realised they were important. Neither of the two prior alleged incidents had been the subject of a complaint to the Gardaí. When questioned further by the Gardaí about these matters, the complainant indicated that she did not wish to identify the men concerned nor did she wish to make any formal complaint in that regard. As well as enclosing the statements from the complainant and the investigating Garda, the respondent's letter of the 18th November, 2013 enclosed notes in respect of counselling received by the complainant relative to these matters in 2005. The applicant's solicitor sought details of the names and contact details of the two men involved so that they could be interviewed. Further disclosure was also sought in respect of any other counselling notes that might exist including from the Rape Crisis Centre. The respondent replied on the 15th January, 2014 stating that the Gardaí were not pursuing efforts to identify the persons allegedly involved in the prior incidents and that the respondent had been advised by An Garda Síochána that as the complainant was making no formal compliant about these prior incidents, the Gardaí had no grounds to institute a criminal investigation.

10 The applicant's solicitors responded to this correspondence on the 27th February, 2014 complaining that in the circumstances that had now arisen, the applicant could not get a fair trial and called upon the respondent to abandon the prosecution. No reply to this letter was forthcoming until the 27th May, 2014 when the respondent confirmed that the prosecution would be proceeding.

11 On the 21st July, 2014, the applicant applied for leave to seek judicial review which was granted by order of Hedigan J.

Submissions

12 Counsel for the applicant, Mr Rahn BL, submits that the refusal of the complainant to identify the perpetrators of the two prior alleged sexual assaults mean that the applicant cannot now obtain a fair trial. He says that in circumstances where the complainant's allegations of assault are absolutely denied by the respondent, the complainant's credibility is central to the prosecution. The complainant's refusal to name the two men in question means that the respondent has been deprived of the opportunity of pursing a line of cross-examination of the complainant which may, critically, undermine her credibility in the eyes of the jury.

13 The applicant contends that if his solicitors were afforded the opportunity of interviewing the two men involved, it might for example emerge from their evidence that they could not in fact have perpetrated the assaults complained of, thus undermining the complainant's credibility as a whole.

14 It was submitted that the foregoing was sufficient to satisfy the well established test for the grant of an order of prohibition of a criminal trial i.e. that there was a real risk of an unfair trial. In that regard, the applicant relied on McFarlane v. DPP [2007] 1 I.R. 134 and the dicta of Hardiman J. in B.J. v. DPP [2003] 4 I.R. 525 where he stated (at p.551):

‘The test of whether there is a real risk of an unfair trial must involve the question of whether the applicant has been deprived of the reasonable possibility of evidence, or of a line of defence, which could be of significant importance.’

15 Reliance was also placed on DPP v. Nora Wall [2005] IECCA 140, where there had been a miscarriage of justice in circumstances where the defendant had been convicted on the evidence of two individuals who had made a number of prior complaints of assault, some withdrawn, that were not disclosed to the defence.

16 The applicant also relies on a number of well-known authorities on the right to cross examine one's accuser effectively, such as Maguire v. Ardagh [2002] 1 I.R. 385 and O'Callaghan v. Mahon [2006] 2 I.R. 32. The applicant also relied on the judgment of the Supreme Court in J.F. v. DPP [2005] 2 I.R. 174, where the court held that a complainant who accuses another of an offence upon which conviction would result in disgrace, loss of liberty, loss of reputation and...