Court of Appeal: Murder trial not rendered unfair after main witness gave evidence via video link and with intermediary

About this case:

• Citation:
  [2022] IECA 4
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice George Birmingham

Delivering judgment in the case, Mr Justice George Birmingham held that the witness had an acquired brain injury and that the trial judge was justified to make an order under section 5 of the Criminal Justice Act 1993.

Background

The appellant, Ms Rita O’Driscoll, was convicted in October 2020 for the murder of Mr Timmy Foley and was acquitted of assault causing serious harm against Mr Jason Foley. It was alleged that the appellant caused fatal stab wounds to the deceased.

Mr Jason Foley (the witness) was the main prosecution witness at the trial. Prior to giving his evidence, the prosecution applied for an order permitting the witness to give evidence via video link pursuant to the Criminal Evidence Act 1992. Further, the prosecution applied for the assistance of an intermediary pursuant to the 1992 Act.

The application was grounded on the basis that the witness suffered from a mental disorder. In this regard, the prosecution called the evidence of the witness’ GP who outlined that the witness fell down a stairs in 2009 and suffered a brain injury. It was stated that the witness suffered a right frontal lobe contusion which required significant cranial surgery. The witness also suffered a further frontal contusion in 2011 from another fall and was admitted to an intensive care unit in 2012 due to a prolonged convulsive status epilepticus.

As such, the witness had weakness down the left side of his body, suffered from slow and slurred speech and made poor decisions in relation to his personal care and housing. The GP provided evidence that the witness found it hard to understand rules and directions, and was under the care of Acquired Brain Injury Ireland for 12 hours a day.

It was said that the witness was someone who required constant assistance but that he behaved very well when prompted. The witness also took medication in the form of antidepressants and antipsychotic drugs.

Evidence was also provided by the proposed intermediary, who was a speech and language therapist, who indicated that the witness claimed to be comfortable in court but in reality was “quite stressed.” It was said that the witness had slower than normal processing speed and had the tendency to change his answers to questions. The witness also had difficulty understanding multi-part questions and could go off topic.

It was stated that the witness would benefit from an intermediary who could clear up confusion in relation to questions asked of him.

The defence argued in cross-examination that the witness had made a statement to gardaí and did not appear to require assistance. It was pointed out that the witness had been personally prosecuted for offences on approximately 25 occasions and there is no record of him requiring assistance either. Finally, the defence submitted that the witness appeared to understand a declaration of truthfulness administered by gardaí.

The trial judge considered the evidence and was satisfied that the witness’ medical profile came within the definition of a mental disorder as required by relevant statute. It was also held that the interests of justice were met by providing for the assistance of an intermediary to ensure the accuracy of evidence. Following the conviction of the appellant, the decision was appealed to the Court of Appeal.

Court of Appeal

The appellant submitted was that the trial judge could not conclude that the witness was under a mental disability simply because he was suffering from an acquired brain injury. The appellant also relied on D.O’D v. DPP [2009] IEHC 559, In which it was noted that evidence given via video link carried a real risk of unfairness to an accused which could not be remedied by directions from a trial judge.

It was held that the judgment in D.O’D was given before the widespread use of video link in the jurisdiction. The general experience of judges showed that evidence could be given via video link without impairing the fairness of a trial, the court said (IBRC v. Browne [2021] IEHC 83). As such, it was suggested that D.O’D might be reconsidered in an appropriate case.

The court held that an accused had no absolute right to insist on an in-person confrontation with the witness and that the decision in D.O’D was limited to its own facts. In this case, the witness was clearly vulnerable and that there was no disadvantage to the appellant in allowing the video link evidence.

The trial judge’s conclusion that the witness should be allowed to give evidence via video link and with the assistance of an intermediary was “more than justified”, the court said. In this regard, the court noted that section f5 of the 1993 act contained a wide definition of “mental disorder” which included “a mental illness, mental disability, dementia or any disease of the mind”.

Although the defence was correct to distinguish between a brain injury and a mental disorder, it was held that the evidence clearly established both a physical trauma and a subsequent limitation on the witness’s comprehension and articulation. Further, it was noted that the intermediary’s role was simply to assist with comprehension, address confusion and ask for questions to be reformulated.

Conclusion

Accordingly, the court was satisfied that the trial judge’s ruling was “unimpeachable”. The appeal was dismissed.