Vattekaden v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 07 July 2016
• Neutral Citation: [2016] IECA 205
• Docket Number: 2015 No. 413
• Court: Court of Appeal (Ireland)
• Date: 07 July 2016

Clarke J.

Finlay Geoghegan J.

Hogan J.

BETWEEN/

ANTONY BABU VATTEKADEN

APPLICANT

- AND -

THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2016] IECA 205

Hogan J.

2015 No. 413

THE COURT OF APPEAL

Prosecution – Sexual assault – Disclosure – Applicant seeking to have trial prohibited – Whether applicant is entitled to be informed of the identity of other alleged perpetrators in advance of trial

Facts: The complainant, in August 2011, alleged that in the course of receiving a massage from the applicant, Mr Vattekaden, he indecently touched her vagina. A few days later she made a complaint to An Garda Siochána who investigated that complaint. The applicant was subsequently charged with a single count of sexual assault, contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990. 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 the defence were served with a letter from the respondent enclosing new material including statements from the complainant and from the investigating Garda. This new 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 was said to have rubbed her genital area and tried to pull down her pyjama bottoms and underwear while she was asleep. The second instance alleged was that in 1999, when the complainant was 16, she was raped in the stairwell of a particular building by a young male whom she knew having consumed a large amount of vodka and some cannabis. The applicant 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. The respondent, the DPP, replied on the 15th January 2014 stating that the Gardaí were not pursuing efforts to identify the persons allegedly involved in the prior incidents. The DPP had been advised by An Garda Síochána that as the complainant was making no formal complaint about these prior incidents, the Gardaí had no grounds to institute a criminal investigation. The applicant complained that in the circumstances he could not get a fair trial and called upon the respondent to abandon the prosecution. On the 27th May, 2014, the respondent confirmed that the prosecution would be proceeding. An application for leave to apply for judicial review was made to the High Court on 21st July 2014 where leave was duly granted by Hedigan J. Noonan J saw no unfairness by reason of the non-disclosure. The applicant appealed to the Court of Appeal against that judgment.

Held by Hogan J that a key aspect of the applicant?s constitutional right to trial in due course of law, namely the right to an effective cross-examination, would be compromised in the circumstances unless the identity of the persons who were alleged to have sexually abused or raped the complainant by reference to the two earlier allegations is disclosed by her in advance of the trial. Hogan J did not, however, agree that it would it be appropriate to grant a final order of prohibition. He considered that this would be too prescriptive a remedy and one which may ultimately prove to be unnecessary. In his view, the complainant should first be given a fair opportunity of considering her position in the light of this judgment.

Hogan J held that he would grant an order staying the prosecution of the sexual offence charge against the applicant unless the complainant discloses the identity of the person or persons who allegedly sexually assaulted her in 1993 and raped her in 1999. In the event that such information is disclosed to the applicant within three months of the date of this judgment, then in those circumstances Hogan J held that this stay would be lifted and that the prosecution could proceed. In the event, however, that this information is not so disclosed, then Hogan J held that the stay on the prosecution would become permanent.

Appeal allowed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 7th day of July 2016

1 Where an accused is charged with sexual assault and the evidence discloses that the complainant previously made similar allegations against unnamed third parties in the past but has never made a formal complaint to the Gardaí in respect of those matters, is he entitled to be informed of the identity of the alleged perpetrators of these offences in advance of trial and, in default, is he entitled to have the trial prohibited? This is, in essence, the issue presented on this difficult appeal by the applicant from the decision of the High Court delivered on 24th July 2015 which ruled adversely to this claim: see Vattekaden v. Director of Public Prosecutions [2015] IEHC 494.

2 The issue arises in the following way: in August 2011 a female complainant alleged that in the course of receiving a massage from the applicant, Mr. Vattekaden, he indecently touched her vagina. A few days later she made a complaint to An Garda Siochána who investigated that complaint. The applicant was subsequently charged with a single count of sexual assault, contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990 (as amended by s. 37 of the Sex Offenders Act 2001).

3 The book of evidence was subsequently served on the applicant on the 18th December 2012. The matter was first listed before the Circuit Court on 11th January 2013. At that point the proceedings were adjourned to allow the defence to raise matters relating to disclosure. Some three days later the applicant's solicitors wrote to the Chief Prosecution Solicitor requesting disclosure of a number of specific matters. One of those requests was the details ?of any complaints of an indecent or sexual nature made against any other person by the complainant.?

4 The trial date was fixed on 11th March 2013 for the following 14th November 2013. Various reminders regarding the disclosure requests were sent in advance of the trial by the applicant's solicitors. As it happens, however, 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.

5 This new 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 was said to have rubbed her genital area and tried to pull down her pyjama bottoms and underwear while she was asleep. The complainant said that she did not tell anybody at the time.

6 The second instance alleged was that in 1999, when the complainant was 16, she was raped in the stairwell of a particular building by a young male whom 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.

7 In a supplementary statement of the 14th November 2013, the complainant said that she did not tell the investigating Gardaí about these incidents previously because she did not feel they were relevant to the case, but that she now realised that these matters were important. Neither of the two prior alleged incidents had been the subject of any 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.

8 In addition to enclosing the statements from the complainant and the investigating Garda, the Director's letter of the 18th November, 2013 also enclosed notes in respect of counselling received in 2005 by the complainant relating to these two prior incidents.

9 The applicant's solicitor then 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 Director's office replied on the 15th January 2014 stating that the Gardaí were not pursuing efforts to identify the persons allegedly involved in the prior incidents. The letter also stated that the Director had been advised by An Garda Síochána that as the complainant was making no formal complaint 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. An application for leave to apply for judicial review was made to the High Court on 21st July 2014 where leave was duly granted by Hedigan J.

The judgment of the High Court: undue delay

11 In his judgment Noonan J. rejected the argument that the applicant had delayed unduly in pursuing this application for judicial review. For my part, I entirely agree with the reasons given by the trial judge. I would, accordingly, dismiss the...