About this case:

• Citation:
  [2024] IESC 48
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Peter Charleton

Delivering judgment for the Supreme Court, Mr Justice Peter Charleton highlighted: “The responsibility of deciding disputes on disclosure is on the trial judge and this is an ongoing responsibility throughout the whole of the trial.”

Background

The appellant was accused of historic sexual violence in a wide-ranging statement to gardaí. A redacted version of her statement was furnished to the accused. The accused sought and received the unredacted version which mentioned other prior experiences of sexual abuse and violence towards her by other parties.

The complainant refused to provide further details including names and accounts in respect of these parties and medical records in respect of distress-related health issues following a request by the accused. Accordingly, the accused sought judicial review seeking orders halting his prosecution.

The High Court and Court of Appeal

In the High Court, Mr Justice Charles Meenan relied on Vattekaden v DPP [2016] IECA 205 in finding that the accused was entitled to an order staying the prosecution for four months until the complainant disclosed the information sought, and that the issue of disclosure was to be properly dealt with in the judicial review proceedings.

The prosecution appealed successfully to the Court of Appeal, which held that discovery issues were for the trial judge.

Leave to appeal to the Supreme Court was granted, with the following issues comprising the appeal:

• Did criminal procedure permit the service of a notice of particulars on or seeking discovery from the prosecution or a complainant?

• Are there rights protecting a victim of sexual violence from enquiry into prior alleged incidents of sexual abuse and/or sexual violence, and if there is an “interests of justice” exception, does same require an application to the trial judge under s.3 of the 1981 Act and what would be the applicable test?

• Is there a privacy exception, or psychotherapeutic privilege, to an application for particulars or discovery and when does this protect the alleged victim of sexual violence?

• Is there any entitlement to obtain disclosure or particulars from a complainant as to the details of any other alleged incidents and what Is the test to be applied in assessing whether this is necessary?

• When may judicial review be granted instead of the trial judge ruling on applications as to the fairness of a criminal trial?

The Supreme Court

Mr Justice Charleton determined that the test for prohibition of this trial upon judicial review was that set out in Nash v DPP [2015] IESC 32, being whether the refusal to make further statements giving details of prior abuse suffered constituted such an irremediable denial of justice that no ruling or direction to the jury by the trial judge could enable the trial to be “in due course of law” as required by Article 38.1 of the Constitution.

Setting out the relevant provisions of the Criminal Law (Rape) Act 1981 (as amended) on the cross-examination of complainants in relation to their prior sexual experiences and noted the restrictive approach taken by the courts to the admission of questions or evidence on this subject, the judge opined: “In general, prior sexual experience has been rendered irrelevant, unless demonstrated as capable of rationally impacting on the decision of the jury.”

Mr Justice Charleton found the relevant principles to be usefully summarised in K v Moran [2010] IEHC 23, including that the High Court should be slow to interfere with the decision of the DPP to prosecute as the adjudication of guilt is properly for the judge and jury in a criminal trial, that it is presumed that an accused will receive a trial in due course of law and that the onus of proof lies on the accused in proving that there is a real risk of an unfair trial which is not discharged by making a general allegation of prejudice.

The Supreme Court considered that a trial judge has no power to order a complainant to make a further witness statement, but can require a witness to answer a relevant question. Noting that sexual violence is “a coerced experience”, the court stated that questions may only be asked, or evidence called, on this subject with leave of the trial judge under s.3 of the 1981 Act.

Determining that the case before it did not meet the threshold for judicial review, the court highlighted that the statutory context has radically changed in the consideration of judicial review in disclosure cases and rendered the decision in Vattekaden no longer one to be followed. 

Mr Justice Charleton emphasised: “What may easily be lost sight of here is that a criminal trial defines itself by the charge, the evidence supporting it and any answer by the accused. Diverting a case into side-issues is not permitted unless a reasonable basis for relevancy is first laid. Fundamentally, the focus of a criminal trial should be on the allegation made.”

Having determined that disclosure was not properly for judicial review, the Supreme Court observed inter alia:

• It is only in the clearest of cases that it will be appropriate to seek judicial review to prohibit a trial because of an allegedly erroneous pre-trial ruling as to disclosure.

• It is within the competence of criminal procedure for a request for information to be made to the prosecution and the prosecution must do what it reasonably can to produce information but must not produce information in a manner contrary to any provision conferring statutory rights upon a person alleged to be a victim of a crime. 

• An alleged victim of sexual violence is entitled at trial to be protected from enquiry into prior sexual experience, which can include any prior sexual offence against them. 

• The criteria to be applied in disclosure applications are relevance, materiality and remoteness; the exclusion of information which is sought only to blacken the character of a complainant on the basis of prior sexual activity; the primary privacy entitlement of a witness to any counselling record in the light of s.19A of the Criminal Evidence Act 1992 (as amended) where the allegation is one of sexual violence; and the right of witnesses to privacy where unnecessary intrusions of a fundamental kind are sought to be made into matters which are not central issues in a case. 

• Issues involving serious intrusion into private life (which are not directly relevant to the alleged offence) are not generally subject to disclosure unless directly germane to an issue in a case and decisions as to same are a matter for the trial judge.

• It is always necessary for a trial judge to ensure a trial in due course of law, which should not involve spurious applications or arguments aiming to divert the trial process from examining the issue of whether the prosecution has met the burden of proving the case beyond reasonable doubt.

• The responsibility is both on the trial judge and the prosecution to ensure that information enabling a fair trial is furnished to the defence.

• The defence should not be restricted from asking relevant questions in aid of the accused, subject to the permission of the trial judge where s.3 of the 1981 Act applies.

• The responsibility of deciding disputes on disclosure is on the trial judge and this is an ongoing responsibility throughout the whole of the trial, and the responsibility of gathering information and disclosing what is relevant is on the prosecution.

Having regard to the facts, Mr Justice Charleton determined:

Conclusion

Accordingly, the Supreme Court dismissed the appeal.

WC v. Director of Public Prosecutions & Ors [2024] IESC 48