Supreme Court: Trial judge intervened in prosecutorial role of the DPP by ordering stay

About this case:

• Citation:
  [2018] IESC 32
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Ms Justice Iseult O'Malley

In circumstances where counsel for the defence had chosen not to raise the inconsistencies by way of cross-examination, and the DPP submitted that a perception of ‘coaching’ the witness could arise if it reconciled the inconsistencies in advance of the trial; Ms Justice O’Malley said that the order was ‘unnecessary and inappropriate’, and amounted to the judge intervening in the DPP’s prosecutorial role.

Background

In 1992, the Eastern Health Board was notified of a complaint made against the respondent, DH. The complainant, who was 14 at the time, had told her older sister that she had been abused by DH. The EHB was notified in later 1992 after the complainant had met with a psychologist, thereafter a social worker from the EHB Community Care Division became involved in the matter.

The social worker referred the complainant to St Louise’s – a unit specifically dedicated to dealing with child sexual abuse. The referral letter to St Louise’s stated that the complainant had alleged that DH put his penis into her ‘a few times’, and that her memories of the abuse were ‘confused’. In 1993, the complainant was interviewed at the unit, however her mother was reluctant to allow a medical examination and the matter did not progress further until the complainant rang the unit again in 1994. The resulting validation report stated that the complainant used the words ‘abuse’, ‘rape’, and ‘sex’ when she was interviewed.

Following further assessment of the matter, in 1995 the social worker formally notified the superintendent of An Garda Síochána at Bray Garda Station. At this stage, the complainant had her mother indicated that they did not wish to pursue the matter to Court, and no prosecution was brought.

In 2013, the complainant was approached by a detective Garda after another local woman made a complaint against DH. At this juncture, the complainant made a statement ‘in which she clearly stated that on four separate occasions at four specified locations the accused had put his penis into her vagina, and that on two of those occasions he sexually assaulted her’.

The DPP decided to charge DH with four counts of rape and two charges of sexual assault.

Central Criminal Court

At the trial in 2016, Ms Justice Deirdre Murphy decided that whether the trial should be stayed by reason of delay would be determined by way of a voir dire, after the substantive trial evidence was complete. The prosecution case was completed after three days, and voir dire ran for a further nine days – which included evidence from the complainant and from the author of the St. Louise’s validation report.

The EHB social worker was not available to give evidence in the trial and the defence had not requested that she be made available.

Justice Murphy was concerned about two of the documents prepared by the EHB social worker in 1994 and 1995, in which there were references to the complainant’s uncertainty about whether sexual intercourse had in fact occurred.

Notably, this issue of conflicting statements was not raised by the defence, and the issue had not been explored by way of cross-examination before the jury.

Justice Murphy ruled that there was no prosecutorial delay, and that DH had not suffered any prejudice due to the lapse of time. Justice Murphy said that DH had ‘singularly failed’ to discharge the burden of proof upon him, but she was concerned that there were striking differences in the complainant’s sworn evidence when compared to her statement to the Gardaí. Justice Murphy said that this should have raised a red flag for the DPP, as to whether there as a fair trial issue in the context of a historic complaint.

Ultimately Justice Murphy put a stay on the rape charges until the DPP conducted ‘a proper evaluation of the evidence’ of the complainant and the EHB social worker.

Supreme Court

Firstly, the DPP submitted that it did not have a right of appeal to the Court of Appeal against an order of this nature, and stated that such an order was not captured by the jurisdiction of the Court of Appeal in criminal matters. Delivering the judgment of the Supreme Court, Justice O’Malley said that the DPP’s analysis was ‘misconceived’ and that the Court of Appeal has jurisdiction in respect of all decisions of the High Court, ‘save where such jurisdiction is excluded or regulated by law’. Justice O’Malley was satisfied that the DPP had the right to appeal to the Court of Appeal but said that this did not mean that a leap-frog appeal directly to the Supreme Court was not possible in circumstances where the constitutional criteria was met.

On whether the trial judge had jurisdiction to put a stay on the trial, Justice O’Malley was satisfied that this was undoubtedly part of the range of orders available to a trial judge. However, the issue was whether this was available to the trial judge in circumstances where the trial judge had not ruled that the decision to prosecute was legally invalid; but imposed the stay conditioned on an investigatory step which the DPP had decided was unnecessary or undesirable. The DPP argued that this did not pay proper regard to the separation of powers.  

Justice O’Malley said that the trial judge erred in finding that the DPP should have clarified the inconsistencies with the complainant, or indicated to her that they might arise, before bringing charges or before the trial. Justice O’Malley said that it was not uncommon for such inconsistencies to arise in historical accusations, and that this was an issue best left to be explored by the defence.

Stating that a trial judge should be wary of second-guessing counsel, and that a judge’s role is not to ‘substitute his or her judgment for that of the prosecution and defence’; Justice O’Malley said that the extremely unusual order was not necessary or appropriate on the facts of the case, and that in making the order, the trial judge intervened in the DPP’s prosecutorial role.

Allowing the appeal, Justice O’Malley granted an order lifting the stay imposed.

• by Seosamh Gráinséir for Irish Legal News