Judgment Title: O'R. -v- D. P. P. Composition of Court: Judgment by: Charleton J. Status of Judgment: Approved |
Neutral Citation No. [2011] IEHC 368 THE HIGH COURT 2010 1299 JR BETWEEN G. O’ R. APPLICANT AND
THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT Judgment of Mr. Justice Charleton delivered on the 7th October 2011 1. This application seeks to injunct the trial of the applicant G. O’R. on a charge of sexual violence because, it is claimed, the alleged victim of the offence was coached as to how she should give evidence. The resolution of this issue requires some discussion as to the proper approach to witnesses by those tasked with preparing for a criminal trial, be they police or lawyers or therapists. But first, the facts that will be in dispute at trial. Facts in Issue 3. While under arrest, the applicant claimed that he was not aware of the age of the complainant. He painted a background of socialising and chatting with the complainant for a considerable part of the evening. The applicant said that they had watched television together and had spoken on the balcony of the flat. Subsequently, according to him, they were alone in his bedroom and talking. He claims that they began stroking each other fondly and then feeling each other while lying on his bed. According to the applicant, the complainant permitted him to remove her jeans to facilitate intimate touching. This activity ended, the applicant claims, because the complainant did not seem interested and she turned away from him. 4. In her statements to the Gardaí, the complainant accepts that she and the applicant had been chatting while at the party. That interaction continued with them both sitting on the bed after she had gone in to his room in order to get her mobile phone. They sat on the bed chatting. She claims that she then fell asleep on the bed, with her back leaning against the wall having been sitting there for some time. She claims that when she awoke, the duvet cover was over her and she was lying flat on her back. She asserts that her jeans had been removed, without her consent, and that the applicant was touching her intimately. She says that she moved away from him and found her jeans thrown across a chair. Another person, related to the applicant, came in and asked was she okay. She did not say anything to him. 5. The trial of the case was considerably delayed. Eventually, on the 3rd February 2010, a jury was empanelled and the trial commenced the next day. During the empanelling, informal discussions between prosecution and defence counsel revealed that the complainant had attended counselling sessions for trauma. The defence sought more information. Notes of the counselling sessions were passed to the defence. A clinical psychologist, whom I will simply refer to as “the doctor”, had counselled the complainant between 10th September and the 29th October 2009. The approach of the doctor is the central to this judicial review application to injunct the continuance of the trial. 6. It is claimed by the applicant that the doctor counselled the complainant not only in relation to what had happened to her, which would be unexceptionable, but that she also engaged in role play with her client whereby the doctor took on the task of pretending to be a defence barrister in order to prepare the complainant for the trial. Since much is made of this claim, I intend to refer as appropriate to the doctor’s notes and to quote the relevant portion. There is nothing disclosed in the notes which could raise any issue of alleged impropriety in the sessions of the 10th September and the 24th September 2009. It is during the session of the 9th October 2009 that it is alleged that coaching took place. In portions of her notes, the doctor records the complainant as suffering from feelings of fear and anger arising from the incident. By this stage, fears around the court case had also become central. The notes record:-
8. The burden of proof is on any applicant for judicial review to prohibit a judicial authority, or injunct a non-judicial authority, from proceeding with a criminal trial. An applicant must demonstrate circumstances whereby a real risk has been established that as the accused, she or he could not obtain a fair trial. This does not require the applicant to demonstrate certainty, or even probability, that an unfair trial will result from what is complained of. The test is met once a real risk of an unfair trial is established; Scully v. D.P.P [2005] 1 IR 242 at para. 22 and McFarlane v. D.P.P., [2007] 1 IR 134 at para. 23. In this context, a real risk of an unfair trial does not encompass a danger which is merely remote, fanciful or theoretical. The burden of proof on the applicant requires that he or she engage with the evidence in order to demonstrate how the circumstances complained of amount to a real risk of an unfair trial. Whether the issue is one of delay, missing evidence, allegedly prejudicial pre-trial publicity or, as in this case, an allegation of coaching, the test remains the same. A real risk of an unfair trial must be established within a context where the unfairness alleged cannot be avoided by appropriate rulings and directions on the part of the trial judge: in other words, that real risk must be demonstrated as unavoidable; Z. v. D.P.P., [1994] 2 I.R. 476 at 506-507. 9. Judicial review may be refused on discretionary grounds if an applicant has a viable and appropriate alternative remedy. It is not clear on the case law whether an application to the trial judge to stay the trial as an abuse of process is to be regarded as an alternative to judicial review to prevent a trial. In McFarlane v. D.P.P. [2007] 1 IR 134 at para. 34, Hardiman J. stated that a court of trial:-
11. In that context, however, an application by way of ambush of the prosecution can also be a breach of fair procedures as may any similar attempt to rush any substantial step in the trial process in disregard of the right of either of the parties to reasonable notice. Within the concept of procedural fairness, the disposal of an application to prevent a criminal case does not differ in terms of reasonable notice from the basic requirements involved in a civil trial. Fair notice must be given by the defence at an appropriate time to the prosecution of the issue alleged to constitute a real risk of an unfair trial and the nature of the case to be made should be set out in writing by way of a notice of motion accompanied by a suitable affidavit. In terms of time, the prosecution must have a fair chance to respond. It would be difficult to envisage that there would be many cases where the already available remedy of application to the trial judge is so unsuitable, by reason of complexity, the time needed for disposal, or some other clear factor such as novelty, whereby judicial review becomes solely the appropriate remedy. The issue raised in this case is, however, a completely novel point concerning alleged witness coaching. Judicial review is, in these circumstances, an appropriate remedy. I therefore turn to that issue. Witness Rehearsal 13. For a witness to be directed as to what they should say in order to prove a case fundamentally strikes against the proper administration of justice. The nature of the enquiry through examination in chief and cross-examination at trial is that thereby the nature of the person giving evidence and the reliability of that person is, it is to be hoped, exposed. Rehearsal, even as to the form of evidence, may have the effect of undermining the natural presentation of testimony which is expected by any court of trial to be given by witnesses of truth. 14. It is also clear, however, that the process of both civil and criminal trial preparation involves both police and lawyers talking to witnesses at various stages. This is inescapable. Otherwise, the presentation of evidence in chief, which is designed to be directed at the crucial points of evidence that are likely to be in issue, would become drawn out, unstructured and lacking in concision, involving as the late Judge Gerard Clarke S.C. used to say, “a consultation in the witness box”. Trained solicitors and barristers involved in pre trial consultations will avoid any suggestion to a witness that a particular emphasis is needed in evidence, much less suggest that a witness should embroider or invent facts. The nature of this process, if professionally conducted, is neutral. It does no more than focus potential evidence and it avoids directing its content. Formal enquiry in preparation for trial is necessary and appropriate: it can help expose strengths and weaknesses to the professional lawyers representing a client; this, when conducted in this neutral form, aids a fair assessment prior to court, possible settlement of a case and its proper prosecution at trial. Witnesses are never to be directed as to the content of their evidence. It would fundamentally undermine the trial process were it to be allowed to become fictional whereby each side is presenting invented facts based on direction as to what may assist their case. No criminal trial process, consistent with that principle of the obligation of truthfulness, can be presented by the defence whereby the case which is regarded as suitable for a successful challenge to the prosecution is put, in distinction to the case made in consultation by the accused and his or her witnesses. It must be recognised, as well, that some witnesses may need more than usual assurance and in the instance of some expert witnesses, for instance university academics, more used to the presentation of a discursive rehearsal of a subject, these may be assisted as to the best form in which their evidence may become focussed. It is not wrong, therefore, to direct those witnesses as to the issues in question in the case and the manner in which their view may be appropriately presented through being shorn of rambling side references and irrelevant musings or tangential material. 15. Those who accuse others of sexual violence have historically tended to be placed in a special category as regards preparation for trial. I do not know that this is necessarily justifiable. As a matter of principle, there would seem to be slight reason why a witness in a criminal case should be treated as being different to any other witness; in order words, a person who can be talked to by those preparing or presenting the case. A book of evidence which incorporates the prosecution witness statements to be given at the trial of an accused removes or lessens the necessity for any direct discussion between prosecution counsel and those who are scheduled to give evidence. On the defence side, a direct discussion between the defence barrister and the accused assists in clarifying such issues as the case to be put to prosecution witnesses, the potential credibility of the accused as a witness and whether, in that context, a client is best advised to give, or to avoid giving, evidence in her or his defence. It is notable that, in this context, no issue has ever been raised that counsel for the defence may not speak with an accused person whom he or she is representing, no matter what the charge. Whether it is the defence or the prosecution lawyers that feel the need to speak with a witness in a criminal trial, the process must be the same for both; that is a neutral form of enquiry. It is clearly apparent to all involved in criminal litigation that suggestion of any kind to a witness as to the appropriate form or content of evidence, or the putting of only selected and apparently attractive or credible parts of the defence case to prosecution witnesses, would completely undermine the search for truth which remains at the heart of any trial process. 16. The bulk of the work in trial preparation of a criminal case is done by the gardaí. In the context of a traumatic event, on what may reasonably be thought to have been a traumatic event, such as sexual violence, experience has shown that it is very rarely enough to take one statement from a witness. Details will almost invariably be later recalled that were absent on a first occasion of taking down a witnesses account. A witness should be allowed to study an earlier statement so as to address any subsequent interview. It is not an indication of untruthfulness that further details will emerge. In cross-examination of any witness it is not correct for issues to be taken out of context. The trial process must be controlled in such a way as each fact as presented in each statement is set within its proper context. In other jurisdictions, issues as to why an issue was not raised in an earlier statement are dealt with in the context of police training for interviewing the victims, or apparent victims, of crime. Some jurisdictions require the video recording of the statement of the alleged victims of sexual violence. Whether as part of the pre-trial process or the trial process itself, the fundamental principle remains that there should be no distortion of what a witness wishes to say through the taking of a passage of evidence out of its appropriate overall context. A crime is not be compounded by the accidental mispresentation of the account of an alleged victim as part of the process of cross-examination. 17. Neither can it be the case that simply because a person is the victim of a crime they are to be shut out from seeking therapy. Of course, in that context, the notes of a therapy session will be sought by the defence and variations in the history of the events recounted may be teased out at trial. This is perfectly proper, once these alleged variations are placed within a truthful context of the relevant passage in full and any earlier or later references to an event or issue. It is difficult to see counselling as a process which might unfairly influence a trial. Therapeutic intervention is, of its nature, independent of the trial process, is concerned with mental stress issues, and is divorced from any immediate desire to seek a particular result. It can also be the case that therapeutic notes are, of their nature, incomprehensible. As pointed out by Simon O’Leary in “A Privilege for Psychotherapy? Part 2”, [2007] Bar Review 76, the nature of what is pursued in therapy differs markedly from the examination of a witness. At pp. 78-79 of that article, the issue of privilege for psychotherapy is pursued as a desirable legal development. This Court has no view on this issue. While this privilege does not now exist in law, the reasoning of the author on the nature of therapy is informative:-
Psychotherapists, once their training is complete, would not usually take or keep notes of sessions with patients. They might note the occasional dream or record a cryptic aide-memoire of significant events or their own musings. Even a complete account of a session would be loose and sketchy, a kind of stream of consciousness, shadowing the treatment. The world of psychotherapy is not like the world of law or medicine... Even if there were a record, it would not pass muster under a business-records … exception to the hearsay rule, which would allow the admission of records only when they have a high degree of accuracy and are customarily checked as to correctness. Psychotherapy is concerned with the tension between inner reality and the outside world. The law is concerned with the outside world, i.e., “with objective facts, with truth" [Slovenko R – On Testimonial Privilege, (1975) Contemporary Psychoanalysis 11, 190]. It is not the business of psychoanalytic psychotherapy to counsel or to give or record opinions or assessments.” 19. In R. v. Dye, R. v. Williamson, (19th December 1991, T.L.R.) the Court of Appeal for England and Wales deprecated a process whereby witnesses in a forthcoming prosecution appeared prior to a criminal trial in a television programme as though they were giving evidence in chief. The court did not reason out why this process was undesirable. It did not need to. The decision accords with fundamental principles as to not interfering with the trial process as they have been understood in this jurisdiction. Nonetheless, no danger to the conviction was identified in this instance. In R. v. Skinner (1994] 99 Cr. App. R. 212, the Court of Appeal for England and Wales ruled that discussions between prosecution witnesses, particularly just before going into court to give evidence, should not take place. Where that kind of discussion happens, it is not necessarily the case that the trial should be prohibited on judicial review, or dismissed by the trial judge exercising the jurisdiction of which I have spoken earlier in this judgment. If it emerges that police officers confer together prior to making witness statements, the defence may properly make an enquiry as to whether this was for a legitimate, or for an illegitimate, purpose. In circumstances where that issue is engaged, it is appropriate for the trial judge to make reference to the relevant controversy in changing the jury. At p. 218 of that judgment, Farquharson L.J. stated that where this issue is raised in the course of a trial:-
62. This principle does not preclude pre-trial arrangements to familiarise witness with the layout of the court, the likely sequence of events when the witness is giving evidence, and a balanced appraisal of the different responsibilities of the various participants. Indeed such arrangements, usually in the form of a pre-trial visit to the court, are generally to be welcomed. Witnesses should not be disadvantaged by ignorance of the process, nor when they come to give evidence, taken by surprise at the way it works. None of this however involves discussions about proposed or intended evidence. Sensible preparation for the experience of giving evidence, which assists the witness to give of his or her best at the forthcoming trial is permissible. Such experience can also be provided by out of court familiarisation techniques. The process may improve the manner in which the witness gives evidence by, for example, reducing the nervous tension arising from inexperience of the process. Nevertheless the evidence remains the witness's own uncontaminated evidence. Equally, the principle does not prohibit training of expert and similar witnesses in, for example, the technique of giving comprehensive evidence of a specialist kind to a jury, both during evidence-in-chief and in cross-examination, and, another example, developing the ability to resist the inevitable pressure of going further in evidence than matters covered by the witnesses' specific expertise. The critical feature of training of this kind is that it should not be arranged in the context of nor related to any forthcoming trial, and it can therefore have no impact whatever on it.” 22. Out of caution, I would merely add to the comments which I have made, that in major criminal prosecutions, familiarisation with the trial court, the personnel involved, the likely sequence of events, and the general nature of any approach to examination and cross examination has become a standard feature of assistance offered by the Chief Prosecution Solicitor for the Director of Public Prosecutions to those who are thought to be the victims of serious criminal offences. Further, the Scottish Equal Treatment Bench Book, which is distributed to members of the judiciary in that jurisdiction, and which is publicly available on the website of the Scottish judiciary, reiterates the importance of familiarisation with the trial court and its proceedings, with a specific focus on alleged victims of sexual crime. It provides as follows:-
11.3 A complainer may benefit from a pre-trial visit to court premises before the case begins. Such visits are normally arranged by the prosecution, but a welcome development in this context is the Witness Service, which offers visits, general guidance and assistance”. 24. Other issues can arise prior to trial that necessitate intervention into what might be thought of as the untrammelled recollection of a witness. It often happens that prosecution or defence counsel reviewing witness statements in preparation for trial may see that an issue has not been dealt with. The correct approach, it seems to me, is for counsel to note that issue and to ask whether a solicitor of police officer might take a further statement within the definite confines whereby the witness is not to be led into believing that particular testimony is dishonesty sought or that particular evidence is expected of them. Instances in which this might arise in practice include the response of an apparent victim to a robbery, as to whether they were put in fear, issues for the victim of a crime as to a defence case made by a statement of the accused to gardaí later in time than the statement or statements founding the complaint and questions in the context of a pathology report on the cause of particular injuries or as to the weapon or as to the amount of force needed. 25. In an overall sense and with a view to summarising the foregoing, what characterises an appropriate approach to trial preparation is its non-directive nature.
Conclusion 27. It is striking that even in the context of the arguably more influential intervention described in R v Momadou [2005] 1 WLR 3442 the resulting conviction was nonetheless regarded as safe and satisfactory. It may be that, if the issue of inappropriate discussion with a witness prior to trial is raised, the trial judge might wish to specifically address any issue by way of a direction whereby he or she points out that if the result of the therapeutic intervention was to cast doubt upon the soundness of the account to be given by the alleged victim, then this has to be taken into account in the adjudication of whether the prosecution had met the burden of proving their case beyond reasonable doubt. This is a matter within the discretion of the trial judge in the running of the case on which no final guidance from a judge hearing a judicial review application is appropriate or possible. 28. Since this is a novel point of law, and one which may impact outside the terms of this particular criminal trial, it may be that the usual costs order that costs follow the event is not appropriate. I will therefore hear submissions.
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